Allahabad High Court
Committee Of Management, Jagdish Saran ... vs Joint Director Of Education And Others on 23 December, 1999
Equivalent citations: 2000(1)AWC744, (2000)2UPLBEC1161
Author: M.C. Jain
Bench: M.C. Jain
JUDGMENT
R.R.K. Trivedi and M. C. Jain, JJ.
1. As in both the aforesaid special appeals, the controversy involved is similar, they can be disposed of by a common order against which learned counsel for the parties have no objection. Special Appeal No. 619 of 1999 shall be the leading case.
2. The facts, in short, giving rise to Special Appeal No. 619 of 1999 are that the post of Principal of Jagdish Saran Rajvanshi Kanya Inter College, Meerut (hereinafter referred to as the College) fell vacant on account of retirement of Smt. Sarla Bansal. This vacancy was communicated to the U. P. Secondary Education Service Commission under the provisions of U. P. Secondary Education Services and Selection Boards Act. 1982 (hereinafter referred to as the Act) and the rules framed thereunder. The Commission in its turn advertised the post inviting applications vide advertisement No. 1, 1995-96. Large number of persons applied in pursuance of the aforesaid advertisement. The Commission having interviewed two senior most teachers of the institution and also the candidates who had directly applied and after completion of the selection proceedings notified the panel of selected candidates on 15.4.1997. The panel recommended by the Commission was as under :
1. Maya Rani Goel (respondent No. 3 in appeal),
2. Smt. Shashi Sharma (respondent No. 4 in appeal), and
3. Smt. Harishwati Yadav.
3. The office of principal of S.S.D. Balika Inter College. Lal Kurti, Meerut. also fell vacant on account of retirement of Smt. Shall Singhal on 30.6.1991. This vacancy was also intimated to the Commission as per rules and was also advertised by advertisement No. 1. 1995-96 and after selection proceedings a panel was recommended on 15.4.1997 of following three names :
1. Smt. Santosh Khurana,
2. Smt. Saroj Yadav appellant in Special Appeal No. 539 of 1999), and
3. Smt. Shashi Sharma (respondent No. 4 in Special Appeal No. 619 of 1999).
4. It is not fn dispute that on account of various interim orders passed by this Court in writ petitions, some of which were of general in nature, prohibiting the implementation of panel dated 15.4.1997 the authorities did not take any action as required under the Act and the rules for implementation of appointment of selected candidates from the panel dated 15.4.1997. In the above circumstances, the Committee of Management vide Resolution No. 7 of 20th June, 1997 authorised Smt. Maya Rani Goel to work as officiating principal. Though. the Committee of Management also took notice of the fact that she had been selected by the Commission for appointment as regular principal and her name is at serial No. 1 in the panel. It was also said in the resolution that after completion of legal formalities, she will ultimately get the aforesaid office. In pursuance of the aforesaid resolution, Maya Rani Goel, respondent No. 3 started discharging functions of the Principal w.e.f. 1st July. 1997. She attained the age of superannuation of 7.8.1998 but she was allowed to continue in the office in view of the Regulation 21 of Chapter HI which provides that age of superannuation for principal and teachers and other employees shall be 60 years but if the date of superannuation falls between 2nd July and 30 June then there will be automatic extension of service upto the close of academic session, i.e., 30th June, so that alternative arrangement may be made by the Committee of Management during summer vacation for the new academic session commencing from the month of July. By virtue of the aforesaid regulation, Maya Rani Goel continued in the office up to 30th June, 1999.
5. In respect of S.S.D. Balika Inter College, Lal Kurti, Meerut Smt. Santosh Khurana who was recommended at serial No. 1 in the panel for the post of Principal attained the age of superannuation on 15.12.1998. It may be clarified that her date of birth was 15,12.1940 but she was to attain the age of superannuation after completing 58 years of age on account of option exercised by her earlier.
6. The writ petitions and special appeals challenging the panel dated 15.4.1997 were considered and decided finally by this Court by the Judgment dated 6th October, 1998 in Balak Singh Kushwaha v. State of U. P. and others. (1998; 3 VPLBEC 989. About panel prepared and notified by the Commission following order was passed :
"The selection made by the Commission and the panel prepared and notified on 15.4.1997 is not affected in any way by the Government notification dated 17.4.1997. The panel shall be implemented by the educational authorities in accordance with law without further delay. The writ petitions of group 3 seeking implementation of the aforesaid panels are thus, allowed and decided accordingly. The writ petitions belonging to the 4th group challenging the panel dated 15.4.1997 are dismissed.
....."
7. After the Judgment dated 6.10.1998 a letter dated 21.8.1999 was written by the District Inspector of Schools to the manager of the college for making appointment of the selected candidate namely Smt. Maya Rani Goel. Thereafter. Committee of Management on 30.1.1999 issued tetter of appointment in favour of Smt. Maya Rani Goel appointing her Principal on regular basis on the basis of the selection made by the Commission. Aggrieved by the aforesaid orders of District Inspector of Schools and the Committee of Management respondent No. 4. Smt. Shashi Sharma who was placed at serial No. 2 in the panel filed Writ Petition No. 12607 of 1999 challenging the appointment of respondent No. 3. Smt. Maya Rani Goel on the ground that as she had already attained the age of superannuation the order of appointment could not be issued in her favour and she being shown at second place in the panel should have been appointed as regular Principal. Learned single Judge disposed of this writ petition by the order dated 28.7.1999 directing that the petitioner who has been selected for the post of Principal shall be permitted to function as Principal of the institution in question. Learned single Judge also gave liberty to Committee of Management to make representation before the Director of Education in respect of their contention that respondent No. 4. Smt. Shashi Sharma was not qualified for the post. Aggrieved by this judgment of learned single Judge Committee of Management and manager of the college have filed Special Appeal No. 619 of 1999.
8. The management of S.S.D. Balika Inter College, Lal Kurti, Meerut. also issued order of appointment in favour of Smt. Santosh Khurana on 2.2.1999 though she had already attained the age of superannuation. The appellant Smt. SaroJ Yadav aggrieved by the aforesaid action filed Writ Petition No. 18232 of 1999 in this Court in which interim order was passed and order of appointment dated 2.2.1999 in favour of Smt. Santosh Khurana was stayed. This interim order was further extended on 25.5.1999. However, during pendency of the aforesaid writ petition respondent No. 1. Smt. Madhu Chaurasia filed Writ Petition No. 30304 of 1999 and obtained interim order dated 23.7.1999 which reads as under :
"Until further order petitioner shall be permitted to function as ad hoc Principal in the institution in question."
Aggrieved by this order of learned single Judge. Special Appeal No. 539 of 1999 has been filed.
9. We have heard Shri R. N. Singh, learned Senior Advocate for the appellant in Special Appeal No. 619 of 1999 and Shri W. H. Khan, learned counsel appearing for respondent No. 4 and learned standing counsel. We have also heard Shri Arun Tandon for the appellant in Special Appeal No. 539 of 1999 and Shri K. P. Bajpal and learned standing counsel for the respondents.
10. After hearing counsel for the parties, in our opinion, the short but interesting question which is required to be determined in these appeals is as to whether an order of appointment could be legally issued in favour of the candidate shown at serial No. 1 in the panel after she had attained the age of superannuation. The facts are not much in dispute in both the aforesaid cases. For answering the aforesaid legal question, it is necessary to consider the nature of right to continue in the office even after attaining the age of superannuation under Regulation 21 of Chapter III of the Regulations framed under the Intermediate Education Act. The Regulation 21. which is in Hindi, is being reproduced below :
^^21- vkpk;Z] iz/kkuk/;kid] v/;kid rFkk vU; deZpkfj;ksa dks vf/ko"kZ 60 o; gksxkA ;fn fdlh vkpk;Z] iz/kkuk/;kid vFkok v/;kid dk mi;qZDr vf/ko"kZ o; 2 tqykbZ vkSj 30 twu ds e/; esa fdlh frfFk ds iM+rk gS rks mls] ml n'kk dks NksM+ dj tcfd og Lo;a lsok foLrj.k u ysus gsrq fyf[kr lwpuk vius vf/ko"kZ dh frfFk ls 2 ekg iwoZ ns ns 30 twu rd lsok foLrj.k Loeaeso iznku fd;k ;k le>k tk;sxk rkfd xzh"ekodk'k ds mijkUr tqykbZ esa izfrLFkkuksa dh O;oLFkk gks lds blds vfrfjDr lsok foLrj.k dsoy mUgha fof'k"V n'kkvksa esa iznku fd;k tk ldsxk tks jkT; ljdkj }kjk fu/kkZfjr dh tk;A^^
11. From the perusal of the aforesaid Regulation 21, it is apparent that the object behind granting automatic extension of . service up to the end of academic session is to protect the academic interest of the students of the institution. But for such arrangement there could be absence of teacher during the academic session which may cause loss to the students as the management may not be able to make arrangement so swiftly. The regulation itself contemplates that during summer vacation alternative arrangement could be made for the next academic session commencing from 1st July. Thus, it is the benefit conferred on the teacher in the interest of students and the institution and it does not create any vested right or lien against the post. The Division Bench in the case of R. L. Prasad v. State of V. P. and others, 1987 AWC 1314, after considering the legal position in respect of such extension of service held as under :
"We respectfully agree with the decision given in the case of D. N. Dhar. (supra). The mere fact that after the date of superannuation an extension has been granted under the regulations to the teachers in the interest of students, no vested right is created in the teachers to continue in service till a particular date."
12. From the aforesaid discussions, it is clear that once a teacher has attained the age of superannuation, in other words age of 60 years or 58 years, as the case may be, he has no vested right to continue in service. The order of appointment, thus, could not be issued in favour of such teacher though selected for the post by the Commission, after attaining the age of superannuation. In our opinion, the educational authorities as well as Committee of Management were not justified in issuing the letter of appointment in favour of teacher for the post of Principal who had already attained the age of superannuation. Under no provision of the Act or the Rules or the Regulations such action can be justified as the panel became ineffective and it was not required to be implemented in respect of . candidate who had already attained the age of superannuation. The only Step required by the authorities of the education department and the Committee of Management was to issue the letter of appointment in favour of the next candidate shown in the order of preference.
13. The submission of learned counsel for the appellant is that on the letter of appointment issued in favour of the candidate shown at serial No. 1 in the panel recommended by the Commission, the panel exhausted and it could not be used for giving appointment to the next candidate mentioned in the panel in order of preference. In our opinion, the submission cannot be accepted for more than one reason. Firstly, as discussed above, after the teacher attained the age of superannuation a letter of appointment could not be issued by the management and this exercise of issuing letter of appointment in favour of such teacher was futile exercise and void ab initio and could not affect the panel in any manner. This Court in the case of Kishori Roman Shiksha Samiti, Mathura v. Regional Deputy Director of Education, Agra, (1994) 1 UPLBEC 248, considered in detail the circumstances in which the panel shall survive for the benefit of next candidate shown in the order of preference. The relevant paragraph 11 of the judgment is being reproduced below :
"11. Thus for ascertaining the true legislative intent the meaning of the words has to be understood with the context and reference in which the provisions have been made. Sub-section (5) of Section 11 of the Act contains the provision dealing with situation which has given rise to the present dispute. There is no dispute so far as first situation contemplated under sub-section (5) of Section 11 of the Act is concerned and if the candidate failed to Join the institution within the time allowed or even within such extended time which the management may allow in this behalf, the authorities could direct management to issue letter of appointment in favour of candidate mentioned at second place in panel. However, so far as the second situation where such candidate is otherwise not available for appointment as a teacher, is material for resolving the present controversy. The scheme and object for which Section 11 of the Act exists in the Statute book, is to make available the selected candidate for appointment on the post of Principal or teacher in educational institution. In the aforesaid provision of sub-section (5) the phrase "where such candidate is otherwise not available for appointment as such teacher" contains some words of very wide meaning and also some words of narrow meaning. The words "otherwise not available" have very wide meaning, covering all kinds of situation including death and other physical injury which may render candidate not available to the institution for appointment as teacher. However, the word "appointment" contains narrow meaning. The question is whether the word "appointment" used in the aforesaid phrase should be given its plain meaning or it should also be given a wider meaning. The maxim "noscitur a sociis" will have to be applied in such circumstances to ascertain correct legislative intent, which means that the meaning of word should be Judged by the company it keeps. In my opinion, in subsection (5) as the word 'appointment' denotes to make available for the work of teaching. and as it has been used with words otherwise not available, having for wide meaning it should also be given and understood, in wider sense so as to include situation where candidate is not available for work as teacher. This phrase thus may be interpreted and construed so as to cover even the situation where the teacher is not available to work even after appointment and Joining the post on account of death etc. Such interpretation can be given to the aforesaid phrase without causing any violence to the scheme and object of the Act and the context and reference in which it has been used....."
14. If the present controversy is considered in the light of the aforesaid judgment, the phrase 'where such candidate is otherwise not available for appointment as such teacher', shall cover the situation where the candidate attains the age of superannuation and as the candidate shown at serial No. 1 could not be made available for appointment, for the reason of her attaining the age of superannuation, the only course open could be to offer appointment to the next candidate mentioned in the panel. The aforesaid view was confirmed by the Division Bench in special appeals in (1994) 2 UPLBEC 1320. Paragraph 13 of the Judgment is being reproduced below :
"13. Looking to the over all facts and circumstances of the case, specially the fact that Smt. Kusum Srivastava died within five days of her Joining and that the name of Smt. Zubairi finds place at Serial No. 2 in the panel which was prepared for the same post, we do not think that it is a fit case where we should exercise jurisdiction under Article 226 of the Constitution of India on purely technical grounds which have been raised to thwart the orders passed by education authorities to deprive Smt. Zubairi of the right to work as Principal of the college. The effect of accepting the contention raised by the appellant would be that the institution would continue to be headed by an ad hoc or officiating Principal for a long period who would be appointed at the sweet will of the management and such an appointment would not be conducive for maintaining proper academic atmosphere in the institution. An institution is run for imparting education to large body of students and it is their interest which is supreme and not the remote chance of a lecturer to work as Principal."
15. It is also not disputed that the aforesaid judgments of this Court were challenged before Hon'ble Supreme Court but special leave petition was rejected by the Apex Court. The judgment of Division Bench of this Court in the case of Nagar Palika Inter College, Jaunpur v. Dr. Havaldar Singh and others, 1996 (1) ESC 252 (All) and the judgment of Hon'ble Supreme Court in the case of Uma Kant v. Bhika Lal Jain and others, (1992) 1 SCC 106, may also be quoted with advantage. Hon'ble Supreme Court in the case of Uma Kant (supra) held in para 7 as under :
"7. .....It is not in dispute that the main list and the reserve list prepared by the Selection Committee on June 20, 1989 were approved by the Syndicate. We agree with the contention of the university that a reserve list is always prepared to meet the contingency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise. This is done in view of the fact that it takes a long time in constituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appointments keeping in view the interest of the student community....."
16. Thus, the contention raised on behalf of the appellant considered from every angle cannot be accepted. In the present case, it is undisputed that the panel prepared and notified by the Commission on 15.4.1997 could not be given effect to on account of various interim orders passed by this Court in writ petitions. Only after the Judgment dated 6.10.1998. the authorities could initiate action for implementation of the panel under Section 11 of the Act. Before the steps could be taken, the candidate mentioned at serial No. 1 in the panel, in both the cases, had already attained the age of superannuation. Thus, the only course open was to offer appointment to the candidate mentioned next in the order.
17. For the reasons stated above, the Special Appeal No. 619 of 1999 filed by the Committee of Management and the Manager has no merit and is accordingly dismissed. Respondent No. 1, Joint Director of Education, 1st Region. Meerut, respondent No. 2, District Inspector of Schools, Meerut and Committee of Management shall take immediate steps to appoint Smt. Shashi Sharma as the Principal of the college for which she was selected and recommended by the Commission.
18. So far as Special Appeal No. 539 of 1999 is concerned. it is not disputed that Smt. Madhu Chaurasia was considered by the Commission for appointment as Principal as senior teacher but was not selected. Smt, Santosh Khurana, admittedly, attained the age of superannuation on 15.12.1998. Thus, the appellant, Smt. Saroj Yadav selected and recommended by the Commission and shown at serial No. 2 in the panel became entitled for appointment and her appointment could not be stayed at the instance of Smt. Madhu Chaurasia in view of the order of Hon'ble Supreme Court dated 17.12.1998 passed in Special Leave Petition No. 19035-38 of 1998, 20225 of 1998 and 19178 of 1998. The order of Hon'ble Supreme Court reads as under:
"Order Issue notice.
Mr. E. C. Vidya Sagar, learned counsel accepts notice on behalf of the respondents/Caveator in S.L.P. (C) NOS./19035-38, 19178 and 20225 of 1998.
Three weeks time is granted to the respondents to file counter-affidavit. Two weeks thereafter is granted to learned counsel for the petitioners to file rejoinder. List in the last week of January. 1999.
It is specified that all those petitioners whose names were sent to the U. P. Secondary Education Services Commission and who were not found fit and were not selected are not being granted any interim relief. The appointments, if any, made, in the meantime in pursuance of the recommendations of the Commission, shall be subject to the ultimate decision of these S.L.Ps'.
It is also clarified that ad hoc Principals working in Colleges for which no selected candidate has been made available by the Commission shall be allowed to continue until further orders."
19. In view of the aforesaid order of Hon'ble Supreme Court, Smt. Madhu Chaurasia was not entitled for any interim order from this Court. As she has not been selected by the Commission, she has no right to resist the claim of Smt. Saroj Yadav who has been selected and recommended for appointment as Principal of S.S.D. Balika Inter College, Lal Kurti, Meerut. The Special Appeal No. 539 of 1999 is accordingly allowed. The order dated 23.7.1999 passed by the learned single Judge is set aside. Respondent No. 2, District Inspector of Schools, Meerut. respondent No. 3, Joint Director of Education, Ist Region, Meerut and respondent No. 5, Committee of Management, S.S.D. Balika Inter College, Lal Kurti, Meerut, are directed to give appointment to Smt. Saroj Yadav without any further delay.
20. However, in both the appeals there will be no order as to costs.