Allahabad High Court
Pragati Dwivedi vs State Of U.P. And 4 Others on 13 September, 2021
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED ON 23.3.2021 DELIVERED ON 13.9.2021 Court No.- 9 Case :- WRIT - A No.- 12623 of 2020 Petitioner :- Pragati Dwivedi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rakesh Pandey Counsel for Respondent :- C.S.C.,Bajrang Bahadur Singh,Krishna Kumar Chand,Satya Prakash Singh Hon'ble Salil Kumar Rai, J.
1. The facts of the case are that Shanta Smarak Kanya Inter College, Meerut (hereinafter referred to as, 'Institution') is an 'institution' as defined in Section 2(b) of the Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred to as, 'Act, 1921') and receives maintenance grant from the State Government. The Institution is governed by the Act, 1921 and the Regulations framed thereunder. Selections to the post of Lecturers in recognized and aided institutions are held by the Uttar Pradesh Education Services Selection Board, Prayagraj (hereinafter referred to as, 'Board'). The procedure for selection of Lecturers is prescribed in Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as, 'Rules, 1998'). Under Section 16(E) of the Act, 1921 the Committee of Management of a recognized institution is the appointing authority of the Teachers of the institution but under the Rules 1998, the Committee of Management of the institution is liable to issue an appointment letter to any candidate selected for appointment and allocated the institution by the Board.
2. Smt. Krishna Sharma and Smt. Shashi Maratha, Lecturers in the institution retired on 30.6.2012. It has been stated in the counter affidavit filed by the Manager of the Committee of Management of the institution, i.e., the respondent No. 5, that the post held by Smt. Krishna Sharma was of Lecturer in Music (Instrument-Tabla) while the post held by Smt. Shashi Maratha was of Lecturer in Music (Instrument-Sitar) and they were teaching the said subjects. After the retirement of the aforesaid teachers, the Committee of Management of the institution sent a requisition to the Board notifying the vacancies and the requisition form specified that of the two posts of Lecturer which were vacant in the institution, one post was of Lecturer in Music (Instrument-Tabla) and the other post was of Lecturer in Music (Instrument-Sitar).
3. In 2016, the Board issued Advertisement No.2/2016 inviting applications for appointment on vacant posts of Lecturers which included the abovementioned two posts of Lecturers in the Institution. It is admitted by the parties that the aforesaid posts were reserved for women and the vacancies in the institution were advertised as Lecturer in Music (Instrument) (Female Category) and the advertisement did not specify any sub-category in the aforesaid subject. In other words, the advertisement did not indicate that of the two posts advertised one was of Lecturer in Music (Instrument-Sitar) and the other was of Lecturer in Music (Instrument-Tabla).
4. It has been stated in the writ petition that the petitioner is a Post Graduate (M.A.) in Music (Instrument-Sitar). In response to the Advertisement No. 2/2016, the petitioner also filed her application to be considered for appointment as Lecturer (Female Category) in the subject Music (Instrument) and was selected by the Board for appointment as Lecturer in Music-Instrument. In the panel of selected candidates prepared by the Board under Rule 12(8) of the Rules, 1998 for appointment as Lecturers in Music (Instrument), one Smt. Rinki Singh was placed at Serial No.1 while the petitioner was placed at Serial No. 3, in order of merit. Both, the petitioner and Smt. Rinki Singh, were allocated the Institution for appointment as Lecturers in Music (Instrument) and an intimation for the said purpose was sent to the Institution by the District Inspector of Schools-II, Meerut (hereinafter referred to as, 'D.I.O.S'). The intimation regarding the petitioner was sent through letter dated 31.7.2020 of the D.I.O.S. On 18.8.2020, the management of the institution issued an appointment letter to Smt. Rinki Singh appointing her as Lecturer in Music (Instrument-Sitar) in the Institution. However, the Committee of Management of the Institution refused to issue an appointment letter to the petitioner on the ground that after Smt. Rinki Singh joined as Lecturer in Music (Instrument-Sitar) no post of Lecturer in Music (Instrument-Sitar) was vacant in the Institution and the other vacant post was of Lecturer in Music (Instrument-Tabla) and because the petitioner was not a post graduate in Music (Instrument-Tabla) but a post graduate in Music (Instrument-Sitar), she was not qualified for appointment on the other vacant post of Lecturer in the Institution. When the petitioner came to know about the aforesaid developments, she submitted a representation to the Chairman of the Board requesting that, in light of Rule 13(5) of the Rules, 1998, she be allocated any other Institution. The Board has not yet taken any action on the aforesaid representation of the petitioner and therefore the present writ petition has been filed by the petitioner praying for a writ of mandamus commanding the Manager of the Institution to issue an appointment letter in favour of the petitioner for the post of Lecturer (Female Category) in Music (Instrument) and, in the alternative, a writ in the nature of mandamus commanding the Board and the Chairman of the Board to allocate any other Institution to the petitioner pursuant to her selection for the post of Post Graduate Teacher - Lecturer (Female Category) in Music (Instrument) against Advertisement No. 2/2016.
5. The Institution has filed a counter affidavit opposing the prayer of the petitioner. In paragraph No. 4 of its counter affidavit, the Manager of the Committee of Management of the Institution (respondent No. 5) has stated that by letter dated 13.8.1969 two posts of teachers in Music were sanctioned in the Institution. The letter dated 13.8.1969 has not been annexed with the counter affidavit. From the tenor of the averments made in paragraph No. 4 of the counter affidavit, it appears that of the two posts sanctioned through letter dated 13.8.1969 one post was for Music (Vocal) and the other post was for Music (Instrumental). Through its counter affidavit the respondent No. 5 has brought on record the letter dated 24.2.1987 issued by the Regional Secretary of the Board of High School and Intermediate Examinations (hereinafter referred to as, 'Education Board'), Regional Office, Meerut which shows that the Institution was recognized by the Board for imparting education at High School and Intermediate level. At the High School level, it was recognized, amongst other, for teaching in Music while at the Intermediate level, it was recognized for teaching in, amongst other subjects, in Music (Vocal) and Music (Instrumental). It has been further stated in paragraph No. 4 of the counter affidavit that vide letter dated 20.6.2005 one post of Music (Instrument-Sitar) in L.T. Grade was upgraded to Lecturer Grade. The letter dated 20.6.2005 has been annexed as Annexure No. 5 to the counter affidavit. It has been further stated in the counter affidavit that Smt. Krishna Sharma who was working on the post of Lecturer in Music (Instrument-Sitar) and Smt. Shashi Maratha, who was working as Lecturer in Music (Instrument-Tabla) in the Institution retired on 30.6.2012 and consequently a requisition, as noted earlier, was sent to the Board. In its counter affidavit, the respondent No. 5 has also brought on record the number of students, who had opted for Music (Instrument) in the Institution indicating that more students had opted for Music (Instrument-Tabla) than Music (Instrument-Sitar) as their optional subject. It has been averred by the Institution in paragraph No. 4 of the counter affidavit that three posts of Lecturer in Music were sanctioned in the Institution out of which one post was for Music (Vocal), one post was of Lecturer in Music (Instrument-Sitar) and one post was of Lecturer in Music (Instrument-Tabla). On the aforesaid facts, the respondent No. 5 pleads that because Smt. Rinki Singh, who was at serial no. 1 in the panel of selected candidates, had already joined as Lecturer in Music (Instrument-Sitar) therefore no vacant post of Lecturer in Music (Instrument-Sitar) was available in the Institution and the other vacant post in the Institution was of Lecturer in Music (Instrument-Tabla) but because the petitioner was not a post-graduate in Music (Instrument-Tabla) but a post-graduate in Music (Instrument-Sitar) she was not qualified to be appointed as Lecturer on the other vacant post and no appointment letter can be issued to her for appointment as Lecturer in the Institution. On the aforesaid ground, the respondent No. 5 has prayed that the writ petition be dismissed.
6. The Board, the Chairman of the Board and the D.I.O.S., arrayed as respondent Nos. 2, 3, and 4 respectively in the writ petition, have also filed their counter affidavits in which they have admitted that the vacancies in the Institution were advertised for appointment as Lecturer in Music (Instrument) and the advertisement did not specify that of the two vacancies advertised, one was of Lecturer in Music (Instrument-Sitar)and the other was of Lecturer in Music (Instrument-Tabla). In their counter affidavits, the respondent Nos. 2, 3 and 4 have not denied the qualification of the petitioner as stated by her in the petition. However, the counter affidavits of respondent nos. 2, 3 and 4 are silent on the nature of the two posts in the Institution which were advertised through Advertisement No. 2 of 2016.
7. The counsel for the petitioner has argued that the Regulations framed under the Act, 1921 prescribe only Music (Vocal) and Music (Instrument) as optional subjects to be taught in any recognized institution and no sub-category of the said subjects have been prescribed as separate optional subjects to be taught in any recognized institution. It was argued that the stand of the management of the Institution that, of the two posts of Lecturer in Music Instrument in the Institution, one post was of Lecturer in Music (Instrument-Tabla) and the other was of Lecturer in Music (Instrument-Sitar) is an artificial sub-division of the prescribed subjects and the said sub-division is not supported by the Act, 1921 or the Regulations framed thereunder. It was further argued that Appendix 'A' to the Regulations prescribes only post-graduation in Music as the minimum qualification for appointment as lecturer in Music and does not prescribe a degree in a specific branch of Music as a requisite qualification for appointment as a Lecturer in Music. It has been further argued that the vacancies notified by the Board through Advertisement No. 2/2016 were for appointment as Lecturer in Music (Instrument) and not as Lecturer in either Music (Instrument-Sitar) or in Music (Instrument-Tabla) and the petitioner being a post-graduate in Music (Instrument) was therefore qualified to be appointed as Lecturer in Music (Instrument) and because she has been selected by the Board for such appointment and allocated the Institution, therefore, the Committee of management of the Institution is liable to issue an appointment letter to the petitioner and a mandamus for the said purpose is to be issued to the respondents. It was further pleaded by the counsel for the petitioner that, in any case, as the petitioner has been selected by the Board for appointment as Lecturer in Music (Instrument) and, if in the facts of the case the Court holds that the petitioner is not entitled to be appointed on the other vacant post in the Institution, the respondent Nos. 2 and 3 are liable to allocate any other Institution to the petitioner under Rule 13(5) of the Rules, 1998 and therefore a mandamus for the said purpose may be issued to respondent Nos. 2 and 3, i.e., Board and its Chairman.
8. Rebutting the argument of the counsel for the petitioner, the counsel for respondent No. 5 has repeated the stand taken by the Committee of Management in its counter affidavit and has argued that the Board has wrongly allocated two candidates having the same qualifications, i.e., post graduation in Music (Instrument-Sitar) for appointment against one post of Lecturer in Music (Instrument-Sitar) in the institution and, in the facts of the case, the institution is not liable to issue an appointment letter to the petitioner for appointment as Lecturer in Music (Instrument-Sitar). It was argued that in view of the aforesaid, the writ petition so far as it prays for a mandamus to the Institution and for a mandamus to the respondent Nos. 2 to 4 to ensure that the petitioner be allowed to join as Lecturer in Music (Instrument-Sitar) in the Institution, is liable to be dismissed.
9. I have considered the submissions of the counsel for the parties.
10. It is the admitted case of the parties that the Institution is a recognized institution as defined in Section 2(d) of the Act, 1921 and is governed by the Act and the Regulations made thereunder. The qualification of the petitioner as M.A. in Music (Instrument-Sitar) is also not denied by the respondents. It is also admitted by the Board that Advertisement No. 2/2016 was issued notifying two vacancies of Lecturer in Music (Instrument) (Female Category) in the Institution and the advertisement did not specify that the posts notified were for teaching any particular musical instrument. The panel of the selected candidates prepared by the Board under Rule 12(8) of the Rules, 1998 which has been annexed as Annexure No. 3 to the writ petition and has not been denied by the respondents also shows that the selections were made by the Board for appointment as Lecturer in Music (Instrument) in different recognized institutions.
11. The records annexed with the counter affidavit filed by the management of the Institution do not show that of the two posts of Lecturer vacant in the Institution and advertised by the Board, one post was of Lecturer in Music (Instrument-Sitar) and the other post was of Lecturer in Music (Instrument-Tabla). There is nothing on record to show that the post of Teacher in L.T. Grade in Music (Instrument) in the Institution, which was ultimately upgraded by order dated 20.6.2005 to Lecturer Grade, was for teaching in Music (Instrument-Sitar). The letter/order dated 20.6.2005 of the D.I.O.S. only indicates that the post held by Smt. Shashi Maratha had been upgraded to the Lecturer Grade. Further, the documents annexed with the counter affidavit of the management of the Institution also do not show that Smt. Krishna Sharma was working on a post of Lecturer of Music (Instrument-Tabla). The letter dated 24.2.1987 issued by the Regional Secretary of the Education Board only indicates that the Institution was recognized for teaching in Music (Vocal and Instrument) and it does not indicate that the posts sanctioned in the Institution to teach Music (Instrument) or Music (Vocal) were sub-divided either into different branches of vocal and instrumental music or were for teaching specific musical instrument.
12. The issue before this Court is as to whether the fact that Smt. Krishna Sharma and Smt. Shashi Maratha were, in actuality, teaching two different musical instruments in the Institution and the requisition sent by the Institution to the Board specified that of the two vacant posts of Lecturer in the Institution, one post was of Lecturer in Music (Instrument-Sitar) and the other post was of Lecturer in Music (Instrument-Tabla) are relevant to decide the nature of posts sanctioned in the Institution and the nature of vacancies advertised by the Board through its Advertisement No. 2/2016 and consequently the right of the petitioner to be issued an appointment letter for appointment as Lecturer on the other post-vacant in the Institution.
13. Under Section 2(d) of the Act, 1921 a recognized Institution means an institution recognized for the purpose of preparing the candidates for admission to the examinations conducted by the Education Board. Under Sections 7(3) to 7(5) of the Act, 1921 the Education Board has the power to conduct examinations at the end of High School and Intermediate Courses, to recognize institutions for the purposes of its examinations and to admit candidates to its examinations. Under Section 7(1) of the Act, 1921 the Education Board has the power to prescribe courses of instructions for High School and Intermediate classes in such branches of education as it thinks fit. Section 15(1) of the Act, 1921 authorizes the Education Board to frame Regulations for the purposes of carrying into effect the purpose of Act, 1921. Section 15(2) of the Act, 1921 empowers the Education Board to make Regulations providing for the courses of study to be laid down for all certificates and diplomas, the conferment of diplomas and certificates, the conditions of recognition of institutions for the purpose of its examinations and all matters which by the Act, 1921 are to be or may be provided for by the Regulations.
14. Chapter XI of the Regulations framed under the Act, 1921 provides that the Education Board shall conduct High School Examination, Intermediate Examination and Intermediate Vocational Educational Examination. Regulation 15 of Chapter VII of the Regulations prescribes that an institution shall hold classes and admit students only in subjects for which the institution has been given recognition by the Education Board. Regulation 16 of Chapter VII of the Regulations further provides that if students are admitted in any institution for a course not recognized by the Board the concerned institution may be subjected to penal action.
15. Apparently, the Education Board shall conduct examinations only in courses of study prescribed by it and the subjects specified in the Regulations. Further, under Sections 2(d) and 7(4) of the Act, 1921 an institution is granted recognition by the Education Board for purposes of its examinations and to prepare candidates for admission to the Board's examinations. Evidently, the recognition given by the Education Board to the institutions is only regarding the subjects specified in the Regulations.
16. Chapters XIII, XIV and XIV(A) of the Regulations specify the different subjects/courses for instructions. The Regulations mention only Music (Vocal) and Music (Instrument) as optional subjects for High School, Intermediate and Intermediate Vocational Education examinations and do not sub-divide the two subjects on the basis of genre or different musical instruments. In other words, the Regulations do not prescribe as separate subjects, courses in different genres of music or in different musical instruments. Any reading of the Regulations by specifying the genres of music or musical instrument would amount to adding words in the particular entry in the Regulations. Any such reading of the entries would result in changing the nature of entry and prescribing a different subject of study, a subject not prescribed by the Education Board and the Regulations. There is nothing in the Act, 1921 or the Regulations which could lead to an inference that the Education Board had intended to prescribe teaching of different musical instruments or of different branches of Music as different subjects. The certificate or degree conferred by the Board would also indicate that the candidate was admitted by the Education Board and passed its examinations in Music (Vocal) or Music (Instrument) and would not reflect that the candidate had studied any specific branch of Music or gained proficiency in any particular musical instrument. The Regulations framed by the Education Board are delegated legislations and, therefore, the omission in Chapters XIII, XIV and XIV-A of the Regulations in not indicating the different branches or genres of music or differqent musical instruments in the relevant entries can be, at the most, a casus-omissus which can not be supplied either by this Court through interpretation or by the Education Board through executive order or by any recognized institution.
17. In Union of India & Another Vs. Deoki Nandan Aggarwal, A.I.R. 1992 Supreme Court 96, the Supreme Court observed, "that it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency." Similarly in Sangeeta Singh Vs. union of India & Others, (2005) 7 SCC 484, the Supreme Court held that the Courts, cannot aid the Legislatures' defective phrasing of an Act, and cannot add or mend, and by construction make up deficiencies which are left there and it would be contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. The observation of the Supreme Court in paragraph Nos. 5, 6 and 9 of the reports which are relevant are reproduced below :-
"5. It is well settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements.
6. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse). The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford Vs. Spooner the courts cannot aid the legislature's defective phrasing of an Act, they cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat Vs. Dilipbhai Nathjibhai Patel). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock Vs. Frank Jones (Tipton) Ltd.) Rules of interpretation do not permit the courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. The courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn, L.C. in Vickers Sons and Maxim Ltd. Vs. Evans, quoted in Jumma Masjid, Mercara Vs. Kodimaniandra Deviah).
9. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See C.S.T. Vs. Popular Trading Company). The legislative casus omissus cannot be supplied by judicial interpretative process."
(Emphasis added) Thus, the entries Music (Vocal) and Music (Instrument) in Chapters XIII, XIV and XIV-A of the Regulations are to be read as they are and without sub-dividing them either on the basis of different genres of music or on the basis of different musical instruments. An institution would be recognized by the Education Board for teaching in Music (Vocal) and Music (Instrument) and not for teaching a particular musical instrument or a particular branch of vocal or instrumental music. The posts sanctioned by the State Government in any aided institution would also be for teaching Music (Vocal) or Music (Instrument) and not for teaching a particular branch of vocal music or a particular musical instrument and in light of Regulation 15 of Chapter VII of the Regulations, the institutions do not have the liberty to treat the posts as posts sanctioned to teach a particular musical instrument.
18. In the present case, the Institution was granted recognition by the Education Board for teaching in Music (Instrument) and was not recognized for teaching a particular musical instrument. In fact, in light of the reasons given, the institution could not have been granted recognition for teaching only a particular musical instrument. For the said reasons, the two posts vacant in the Institution and advertised by the Board were of Lecturer in Music (Instrument) and not of Lecturer in particular musical instrument and the one post still vacant is not of Lecturer in Music (Instrument-Tabla). The fact that the teachers previously working in the Institution were teaching two different musical instruments and the Management had sent the requisition specifying that the posts were for teaching two different musical instruments is not relevant to decide the nature of vacancies advertised by the Board through Advertisement No. 2 of 2016. In the circumstances, the information sent by the Committee of the Management to the Board through its requisition that, of the two posts of Lecturers in Music (Instrument) sanctioned and vacant in the Institution, one was of Music (Instrument-Tabla) and the other was of Music (Instrument-Sitar), was not relevant and the Board rightly ignored it and notified the vacancies for appointment as Lecturer in Music (Instrument).
19. The right of the petitioner to be issued an appointment letter also depends on whether the petitioner possessed the minimum qualifications for appointment as Lecturer in Music (Instrument). Section 16-E(3) of the Act, 1921 provides that only a person who possesses the minimum qualifications prescribed by the Regulations shall be appointed as a teacher in a recognized institution. Rule 5 of Rules, 1998 provides that a candidate for appointment to a post of teacher must possess the qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Act, 1921.
20. Regulation 1 of Chapter II of the Regulations is part of Appendix 'A' appended to the Regulations framed by the Education Board and prescribes the minimum qualifications required for appointment as teacher in a recognized institution. Entry 25 of Regulation 1 prescribes M.A. in Music (amongst other alternative qualifications) as minimum qualification required for a music teacher to teach intermediate students, i.e., class 11 and 12 students. The Regulations do not prescribe a degree in any particular musical instrument or in any particular genre of music as minimum qualification for appointment as Teacher in Music. Chapters XIII, XIV and XIV-A of the Regulations mention Music (Vocal) and Music (Instrument) as optional subjects to be chosen by any candidate admitted for appearing in the High School, Intermediate or Intermediate Vocational Education examinations conducted by the Education Board. However, the candidates can chose only one of them as their optional subject and not both of them as their optional subjects. In other words, a candidate can opt either for Music (Vocal) or Music (Instrument) but cannot opt for both of them. It is pertinent to note that the Regulations do not mention 'Music' as a course of study but specify Music (Vocal) and Music (Instrument) as courses of study. Evidently, Music (Vocal) and Music (Instrument) are two different subjects and courses of study. However, Entry 25 in Regulation 1 of Chapter II prescribes post-graduation in Music as the minimum qualification required for appointment as Teacher / Lecturer in Music to teach in Class XI and XII. The Regulations do not prescribe different qualifications for appointment as Teacher in Music (Instrument) and Music (Vocal). A plain reading of the qualifications prescribed in Entry 25 of Regulation 1 of Chapter II for appointment as Teacher in Music (Vocal) and Music (Instrument) would lead to an absurdity as a Post-graduate in Music (Vocal) would also be eligible for appointment as Teacher of Music (Instrument) and a Post-graduate in Music (Instrument) would also be eligible for appointment as Teacher of Music (Vocal) even though Music (Vocal) and Music (Instrument) are two different subjects prescribed by the Education Board. While interpreting legislative provisions, absurdity is to be avoided. Regulation 1 of Chapter II which prescribes minimum qualifications for appointment as Teacher in recognized institutions and the relevant items in Chapters XIII, XIV and XIV-A specifying the courses of study are part of the same legislative enactment. In order to avoid the absurdity referred earlier, the qualifications prescribed in Entry 25 have to be interpreted and read as 'Post-graduate in Music (Vocal) or in Music (Instrument) depending on the post for which appointments are to be made.' In other words, only a candidate, who is a post-graduate in Music (Vocal) would be eligible for appointment as Lecturer in Music (Vocal) and a candidate who is a post-graduate in Music (Instrument) would be eligible for appointment as Lecturer in Music (Instrument) in any recognized institution. But the same can not be read to mean as requiring a post-graduate in a specific genre of music or a post-graduate in a particular musical instrument, because the Regulations do not prescribe, as courses of study, a particular genre of music or teaching of a particular musical instrument. Thus, if the selecting body or the appointing authority demands from an applicant a post-graduation in a specific branch of vocal music or a post-graduation in a particular musical instrument, such a demand would be inconsistent with the Regulations. For the aforesaid reasons, the refusal of the Management of the Institution to issue an appointment letter to the petitioner on the ground that she is a post-graduate in Music (Instrument-Sitar) and not a post-graduate in Music (Instrument-Tabla) is inconsistent with the Regulations.
21. An issue similar to the issue in the present case arose before the Supreme Court in Dr. Chetkar Jha Vs. Dr. Vishwanath Prasad Verma & Another, 1970 (2) SCC 217. In the aforesaid case, the controversy related to the minimum qualifications required for appointment as Professor in Department of Political Science in Patna University. The relevant Statutes of the University, at the time of advertisement, prescribed the minimum qualifications for appointment as Professor in the University as, "first or second class Master's degree of an Indian University or an equivalent qualification of a foreign university." The Bihar Public Service Commission, which at that time had the power to recommend names for appointments to the University, advertised the said post and the minimum qualifications required for appointment to the post were published as "first or second class Master's degree in the subject of an Indian University or an equivalent qualification of a foreign university." The Vice-Chancellor of the University got published, through the Commission, another advertisement amending the earlier advertisement and the revised advertisement stated the required qualifications as "first or second class Master's degree in Political Science or in an allied subject like History or Economics of an Indian University or an equivalent qualification of a foreign university." The appointment of the selected candidate was under challenge before the Supreme Court wherein it was argued that the words in the University Statute, namely, that the University Professor "shall possess a first or second class Master's degree" meant a Master's degree "in the subject" and therefore the original advertisement was in conformity with the University Statute relating to the qualifications and the revised advertisement had the effect of amending the Statute and was therefore unauthorized and the appointment of the selected candidate was contrary to the Statute. The Supreme Court rejected the aforesaid contention and held that the words "in the subject" in the advertisement initially issued by the Commission debarred the candidates with first and second class Master's degree in subjects other than Political Science and was therefore not in conformity with and not consistent with the relevant University Statute laying down the qualifications. In this context the observations of the Supreme Court in paragraph Nos. 10, 11 and 12 of the reports are reproduced below :-
"10. Under Section 58 of the Act, until Statutes, Ordinances, Regulations and Rules were made under the Act, Regulations made under the Bihar State Universities Act, XIV of 1960, which were in force immediately before the commencement of the present Act, were to continue to be in force and were to be deemed to be Statutes, Ordinances, Regulations and Rules made under the corresponding provisions of this Act. Chapter XII of the Statutes made under the earlier Act and which was in force immediately before the commencement of the Act, was, therefore, to continue in force and was deemed to have been made under the present Act. Under that Statutes, the qualifications for the post of a University Professor were inter alia "a first or a second class Master's degree of an Indian University or an equivalent qualification of a foreign University". The Statute, it will be noticed, did not lay down that the Master's degree had to be "in the subject" for which the candidate would be appointed. Apparently, the question whether the concerned candidate was proficient in the subject for which he had applied for appointment was left for decision by the appointing authority. Under Chapter XIV of the Statute, whenever an appointment had to be made the Vice-Chancellor had the power with the approval of the Chancellor to decide whether the post should be filled up by promotion or by direct recruitment.
11. There is no dispute that the Vice-Chancellor had obtained such approval and the post was to be filled up by direct recruitment. As required by Section 26(1) of the Act, appointments of teachers and professors of the University could only be made on the recommendations made by the State Public Service Commission. Accordingly, the Vice-Chancellor sent to the Commission a requisition for advertisement for the post. In that requisition he set out, without any words of, limitation or additional qualifications, Chapter XII of the Statutes which laid down the qualifications. In the advertisement issued by the Commission, however, that body introduced the words "in the subject" announcing thereby that the candidate must possess a first or second class Master's degree in Political Science. The insertion of those words of limitation clearly was not in conformity either with the requisition sent by the Vice-Chancellor or with Chapter XII of the Statutes and actually debarred candidates with first or second class Master's degrees in subjects other than Political Science. Such a restriction was not consistent with the Statute in Chapter XII laying down the qualifications.
12. It was obviously to correct this error on the part of the Commission that the Vice-Chancellor caused the revised advertisement to be issued by the Commission in which it was clarified that candidates not only with first or second class M.A. degrees in Political Science but those with such degrees in allied subjects such as History and Economics could also apply. The record shows that this fact was explained to the Chancellor by the Vice Chancellor and the then Chancellor had at that time raised no objection. As appears from the Vice-Chancellor's reply to the show cause notice issued by the Chancellor, this very interpretation of the Statute had been given in the past on a number of occasions and several appointments had been made without any objection from anybody. The revised advertisement was thus made to clarify the position that under the Statute laying down the qualifications for the post it was not as if an eligible candidate could be the one who held the M.A. degree in Political Science only. Since the post was for a professorship in Political Science, the revised advertisement stated that candidates with first or second class M.A. degree in Political Science as also in an allied subject could apply. In doing so the Vice-Chancellor did not purport to modify or alter the Statute relating to qualifications as was the view of the Chancellor, but on the contrary, clarified the correct position and gave a correct interpretation to the Statute in question. The Chancellor, therefore, could not, on a wrong interpretation of the Statute, hold that the revised advertisement was a modification of that Statute, that it was, therefore, invalid, and that, therefore, he had the jurisdiction to nullify the Syndicate's resolution of July 3, 1963, under Section 9(4) of the Act. Section 9(4) authorises the Chancellor to nullify the Syndicate's resolution provided only if the Syndicate's proceedings were not in conformity with the Act or the Statute."
(Emphasis added)
22. It is admitted that one post of Lecturer in Music (Instrument) in the institution is still vacant and the contention of the Management that the said post is for Music (Instrument-Tabla) stands rejected. The petitioner being a post-graduate in Music (Instrument) (though in a particular musical instrument) was eligible for being considered for appointment as teacher in Music (Instrument) in the Institution on the posts advertised through Advertisement No. 2 of 2016 and after being so selected is entitled to be issued an appointment letter by the Management of the Institution on the post vacant in the Institution.
23. Under Rule 12(8) of the Rules, 1998 the Board prepares a panel, for each category of advertised post, of those candidates found most suitable for appointment in order of merit and institutions are allocated to the candidate under Rule 12(10) on the basis of his place in the order of merit. The panel is to be forwarded by the Board under Rule 12(11) of the Rules, 1998 along with the name of the institution allocated to the selected candidates to the Inspector, i.e., all the District Inspector of Schools, with a copy thereof to the Joint Director of Education, Incharge of the Region. Under Rule 13 of the Rules, 1998, the Inspector is required to intimate the name of the candidate to the management of the institution which had notified the vacancy, with the direction that, under resolution of the management, an order of appointment be issued to the candidate by registered post. Under Rule 13(2) of the Rules, 1998 the management is liable to comply with the direction given under sub-rule (1) and report compliance thereof to the Board through the Inspector. Under Rule 13(4) of the Rules, 1998 the Joint Director of Education Incharge of Region shall monitor and ensure that the candidates selected by the Board joins the institution in the specified time and for this purpose, he may issue such direction to the Inspector as he thinks proper.
24. The D.I.O.S. vide his letter dated 31.7.2020 addressed to the Manager of the Committee of the Management and the Principal of the Institution has already directed them to ensure that the Committee of Management passes an appropriate resolution authorizing the Manager to issue an appointment letter to the petitioner enabling her to join as teacher in Lecturer Grade in the subject Music (Instrument) in the Institution. The Committee of Management of the Institution and the Manager and the Principal of the Institution are liable to comply with the directions given by the D.I.O.S vide letter dated 31.7.2020 and issue an appointment letter to the petitioner to enable her to join as teacher in Lecturer Grade in the subject Music (Instrument) in the Institution.
25. In view of the aforesaid, the D.I.O.S. is directed to ensure compliance of his order dated 31.7.2020 and ensure that an appointment letter is issued to the petitioner by the Manager of the Committee of Management of Shanta Smarak Kanya Inter College, Meerut appointing her as Lecturer in Music (Instrument) in the Institution. The D.I.O.S. shall ensure that the appointment letter is issued to the petitioner within 15 days from the date a copy of this order, downloaded from the website of the Allahabad High Court, is served by the petitioner to the D.I.O.S. and the Principal or the Manager of the Committee of the Management of the Institution. The appointment letter shall be served on the petitioner personally as well as by registered post and the petitioner shall be permitted to join the Institution in pursuance to the aforesaid appointment letter. The Joint Director of Education, Meerut Region, Meerut is also directed to ensure that the petitioner is allowed to join in the Institution as Teacher in Lecturer Grade in Music (Instrument) and be given all consequential benefits. The Joint Director of Education, Meerut Region, Meerut shall also ensure that the aforesaid exercise is completed within two months from today.
26. With the aforesaid directions, the writ petition is allowed.
27. The Joint Registrar (Compliance) shall send a copy of this order to the Joint Director of Education, Meerut Region, Meerut within 24 hours.
Order Date :- 13.9.2021 Anurag/-