Allahabad High Court
Committee Of Management, B.D. Bajoria ... vs Director Of Education (Secondary), ... on 27 August, 1999
Equivalent citations: 2000(1)AWC518, (2000)1UPLBEC46
Author: M. Katju
Bench: M. Katju
JUDGMENT M. Katju, J.
1. This writ petition has been filed against the Impugned order dated 11.2.99. 20.2.99 and 5.4.99 (Annexures-8, 8A and 14 to the writ petition) and for a mandamus restraining the respondents from appointing the respondent No. 5 as the Principal of B. D. Bajoria Inter College, Saharanpur.
2. I have heard learned counsel for the parties. The petitioner No. 1 is the Committee of Management of the institution in question and the petitioner Nos. 2 and 3 are permanent lecturers therein. The petitioner No. 2 was appointed as lecturer in English in the year 1965 while the petitioner No. 3 was appointed as lecturer in Chemistry in the 1966.
3. It is alleged in paragraph 4 of the petition that the work and conduct of the petitioner Nos. 2 and 3 has been satisfactory and there is no complaint or adverse entry against them. The petitioner No. 2 has done M.A. in English and M.A. in Political Science and has done B.Ed, and got 34 years of teaching experience. The petitioner No. 3 has done M.Sc. in Chemistry and has 33 years teaching experience. It is alleged that petitioner Nos. 2 and 3 are fully qualified and eligible for the post of Principal of an Intermediate College. In paragraph 7 of the petition it is alleged that the permanent Principal of the institution retired from service on 30.6.1993 and on that vacancy Shiv Prakash Sharma, the seniormost lecturer, was appointed as officiating Principal from 1.7.1993. In paragraph 9 of the petition it is alleged that the date of birth of the petitioner No. 2 is 1.1.1942. In paragraph 10 of the petition it is stated that Shiv Prakash Sharma attained the age of superannuation of 60 years and continued on extension till the end of the academic session and retired on 30.6.1999. In paragraph 11 of the petition it is alleged that the petitioner Nos. 2 and 3 are the next seniormost lecturers in the Institution in order of seniority. In paragraph 12 of the petition it is alleged that the petitioner Nos. 2 is at serial No. 2 immediately below Shiv Prakash Sharma while the petitioner No. 3 is at serial No. 3 Immediately below the petitioner No. 2. in paragraph 13 of the petition it is alleged that since Shiv Prakash Sharma was to retire on 30.6.99 an order was issued by the Manager of the institution on 19.5.99 directing Shiv Prakash Sharma to deliver charge of the office of principal to the petitioner No. 2. True copy of the order dated 19.5.99 is Annexure-1 to the petition. In paragraph 14 of the petition it is alleged that the U. P. Secondary Education Service Commission issued an advertisement which was published in the U. P. Rozgar Digest dated 20/26.12.1995 whereby applications were invited for the post of Principal of large number of educational institutions in the State Including the institution in question. True copy of the advertisement is Annexure-2 to the petition. The last date for submitting the application-form was 18.1.1996. The said advertisement contained a stipulation that the relevant date for computation of age and eligibility qualifications was the last date of submission of application forms. Pursuant to the advertisement selection proceedings were held by the Commission in which the petitioner was also considered as the seniormost lecturer in the institution. The result of the aforesaid selection was notified by the Commission by notification dated 15.4.1997. However, it is alleged in paragraph 18 of the petition that the panel notified on 15.4.1997 could not be immediately implemented on account of two interim orders of general application passed by the High Court being interim order dated 16.10.1996 passed in Special Appeal No. 180 of 1996 and Interim order dated 17.10.1996 passed by the learned single Judge in Writ Petition No. 33784 of 1996 vide Annexures-4 and 5 to the petition. Ultimately the Division Bench gave final judgment on 6.10.1998 (copy of which is Annexure-6 to the petition). The Division Bench held that since there were objections against the selected candidates that they did not possess the requisite qualifications for the post of Principal, such objection may be filed before the Director of Education who will decide it himself or through some Deputy Director nominated by him. In paragraph 20 of the petition it is stated that the State Government issued G.O. dated 7.1.1999 directing the implementation of the select list mentioned above subject to the decision of the Supreme Court. True copy of the G.O. dated 7.1.1999 is Annexure-7 to the petition. However. it was also directed that it should be ascertained whether the candidates possess the requisite qualification. Thereafter the D.I.O.S. Saharanpur. issued a letter dated 11.2.1999 recommending the name of the respondent No. 5 for appointment as the Principal of the institution In question. True copy of the letter of the D.I.O.S. dated 11.2.1999 is Annexure-8 to the petition which was followed by another letter dated 20.2.1999 vide Annexure-8A to the writ petition.
4. It is alleged in paragraph 22 of the writ petition that the respondent No. 5 is neither qualified nor eligible for appointment as Principal. In paragraph 23 of the petition it is alleged that Shiv Prakash Sharma filed a representation to the Director of Education alleging that respondent No. 5 does not possess the requisite qualifications. True copy of the representation is Annexure 9 to the writ petition. Two other representations of Shiv Prakash Sharma are Annexures-10 and 11 to the petition. In paragraph 24 of the petition it is alleged that on 23.2.1999 the Director of Education issued an order to the Joint Director of Education, Saharanpur directing him to conduct an enquiry regarding eligibility qualifications of respondent No. 5. True copy of the said order is Annexure 12 to the petition. In paragraph 25 of the petition it is alleged that no enquiry was conducted despite this order nor any hearing was given to the petitioner nor any report was given by the Joint Director of Education. On the other hand, the Deputy Director of Education. Saharanpur passed an order on 1 1.2.1999 holding respondent No. 5 to be qualified and eligible. True copy of the said order dated 11.2.1999 is Annexure-13 to the petition. It is alleged in paragraph 26 that the Deputy Director of Education was not authorised to hold any enquiry into the matter and hence his order is without jurisdiction since only the Joint Director of Education had been authorised by the Director of Education who has not conducted any enquiry or passed any order regarding qualifications of respondent No. 5. In paragraph 28 of the petition it is alleged that the order dated 11.2.1999 shows that the Deputy Director of Education issued notice to respondent No. 5 who submitted some reply with certain testimonials and on that basis the order dated 11.2.1999 was passed.
5. In paragraph 28 of the petition it is alleged that the order dated 11.2.1999 was passed in violation of the principles of natural Justice and without issuing notice to the petitioners. In paragraph 29 of the petition it is alleged that the reply of the respondent No. 5 was not made available to the petitioner nor were they given opportunity of hearing nor were the documents filed by the respondent No. 5 made available to the petitioners. In paragraph 30 of the writ petition it is alleged that on the basis of the order dated 11.2.1999 the D.I.O.S. has issued an order dated 5.4.1999 threatening to supersede the Management. True copy of the said order dated 5.4.1999 is Annexure-14 to the petition. In paragraph 32 of the petition it is alleged that the respondent No. 5 does not possess qualification of Principal. In paragraph 33 of the petition it is alleged that apart from academic qualification the post of Principal requires four years of teaching experience in class IX to XII under Appendix-A of Chapter II Regulation 1 of the U. P. Intermediate Education Regulations. It is alleged that this does not include experience in part time or ad hoc capacity. Reference has been made to the Division Bench decision of this Court in Tulsi Ram and others v. State of U. P. and others, 1998 (3) ESC 1617. In paragraph 35 of the petition it is mentioned that the order dated 11.2.99 itself mentions that respondent No. 5 was appointed against a short term vacancy of lecturer in Agriculture and completed 4 years and 2 days of teaching on 18.1.1996. In paragraphs 36 and 37 of the petition it is stated that there was a ban on ad hoc appointments by the State Government from July, 1991 to 14th July, 1992. In paragraph 38 of the petition it is alleged that respondent No. 5 is only B. Sc. in Agriculture and M.Sc. in Agriculture Chemistry and hence not qualified for teaching any subject in the institution. In paragraph 39 of the petition it is alleged that Agriculture is not taught in the Institution in question. In paragraph 40 of the petition it is alleged that a principal is required to take a minimum of 12 teaching periods in the institution but the respondent No. 5 lacks qualification for teaching any subject in the institution. In paragraph 41 of the petition it is alleged that there is no justification for appointing a person with background as Agriculture for the post of Principal when he is not qualified to teach any subject in the institution.
6. A counter-affidavit has been filed by the respondent No. 5. In paragraph 4 of the same it has been stated that the petitioner has been duly selected and recommended by the U. P. Secondary Education Service Selection Board vide Selection List dated 15.4.97. However, despite the selection he has not been permitted to join on the post of Principal. In paragraph 11 of the counter-affidavit it is stated that the petitioner No. 2 has been found unfit for the post of Principal by the Commission. In paragraph 14 of the counter-affidavit it is stated that Shiv Prakash Sharma has retired from the post of officiating Principal from 30.6.99. In paragraph 15 of the counter-affidavit it is stated that the date of birth of petitioner No. 2 is 25.12.1938 and hence he has attained the age of superannuation on 24.12.98, hence he could continue as lecturer only till 30.6.99. In paragraph 23 of the counter-affidavit it is stated that respondent No. 5 possesses the necessary qualifications for appointment as Principal and the controversy has been adjudicated by the Dy. Director of Education vide order dated 11.2.99. In paragraph 26 of the counter-affidavit, it is stated that on 11.2.99 Sri A. P. Chowdhart was holding both the charges of Deputy Director and Jt. Director of Education and the order dated 11.2.99 was passed after taking all relevant facts into consideration. In paragraph 28 of the counter-affidavit it is stated that no notice was required to be given to the petitioners before the passing of the order dated 11.2.99 since they had not made any complaint to the Director of Education. In paragraph 32 of the counter-affidavit it is stated that respondent No. 5 possesses the necessary academic qualification and requisite teaching experience. In paragraph 33 of the counter-affidavit it is stated that the judgment in Tulsi Ram's case has no application. In paragraph 34 it is stated that respondent No. 5 was appointed as lecturer in Agriculture which was approved by the DIGS on 15.1.92 vide Annexure-CA3. The respondent No. 5 had teaching experience of 4 years and 2 days on the date of his selection as Principal. In paragraph 35 of the counter-affidavit it is stated that the Government Orders dated 31.8.91, 21.7.92 and 17.9.92 do not prohibit appointments on short term vacancies. It is further stated that the appointment of respondent No. 5 was approved by the D.I.O.S. The circular dated 30.7.91 was revoked by the State Government by a subsequent circular dated 26.9.91 and the controversy has been settled by the Court in various decisions. In paragraph 36 of the counter-affidavit it is stated that the respondent No. 5 is qualified to teach Science and Fruit Preservation subject to the Higher Classes. It is further stated that the U. P. Secondary Education Commission has taken into account the educational qualifications of the respondent No. 5 before making its recommendations. In paragraph 37 of the counter-affidavit it is stated that petitioner No. 1 did not issue appointment letter to respondent No. 5 on one pretext or the other and has thus deliberately flouted the directions of the Education Authorities. In paragraph 38 of the counter-affidavit it is stated that against the interim order dated 16.4.99 in Writ Petition No. 15714 of 1999 a Special Appeal No. 408 of 1999 was filed in which an interim order dated 25.4.99 was passed with direction that the interim order dated 16.4.99 shall operate only till 30.6.99. Hence it is alleged that after 30.6.99 there is no Justification for denying the claim of the Principal as recommended by the Commission.
7. Rejoinder-affidavit has also been filed and in paragraph 3 of the same it has been alleged that the selection of respondent No. 5 is wholly illegal. In paragraph 4 of the rejoinder-affidavit it is alleged that on the retirement of Shlv Prakash Sharma the petitioner No. 2 has been functioning as officiating Principal and his signatures have been attested by the DIGS. In paragraph 14 of the rejoinder-affidavit it is stated that the date of birth of petitioner No. 2 is 1.1.1942 as mentioned in High School certificate vide Annexure-RA4 and this date is also recorded in the Service Book, though there is a printing error in the U. P. Gazettee. In this connection letter of the DIOS dated 7.7.99 is Annexure-RA7 to the rejoinder-affidavit. In paragraph 33 of the rejoinder-affidavit it is stated that there was a complete prohibition against appointments in January, 1992 and it is not correct to say that the Circular dated 26.9.91 revoked the said prohibition. In paragraph 34 of the rejoinder-affidavit it is reiterated that respondent No. 5 was not qualified for teaching any subject in the institution. It is stated that Fruit Preservation subject is not a subject in the curriculum but has been included as a vocational subject. All the qualification of respondent No. 5 are in Agriculture Science and he is not qualified to teach even Science subjects in High School or Intermediate College. It is alleged that respondent No. 5 has Intentionally concealed his marks pertaining to his qualification.
8. Regulation 1 of Chapter II of U. P. Intermediate Education Regulations contains Appendix A which deals with minimum qualification for the post of Head of the institution. This regulation reads as follows :
"1. Head of the institutions (1) trained M.A. or M.Sc. or M.Com. or M.Sc. (Agri) or any equivalent post graduate or any other degree which is awarded by corporate body specified in above mentioned para one and should have at least teaching experience of four years in class 9 to 12 in any training institute or in any institution or University specified in above mentioned para one or in any degree college affiliated to such University or Institution, recognised by Board or any institution affiliated from Boards of other States or such other institutions whose examinations are recognised by the Board, or should the condition is also that -he/she should not be below 30 years of age.
Or
2. First or second class postgraduate degree along with teaching experience of ten years in intermediate classes of any recognised Institutions or third class post graduate degree with teaching experience of fifteen years.
Or
3. Trained post-graduate diploma holder In science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course."
9. A perusal of the above regulations show that to be appointed Head of the institution the person must have four years of teaching experience in Class 9 to 12 in a recognised institution. Admittedly the respondent No. 5 has four years teaching experience of Class 11 and 12 and has done M. Sc. with Agriculture with B. Ed. These facts have been considered by the Commission as well as by the Jt. Director of Education/Dy. Director of Education in his order dated 11.2.99.
10. As regard the allegations of the petitioners that teaching experience was on ad hoc basis, in my opinion this does not make any difference as the aforesaid Regulation does not say that the teaching experience must only be in a permanent capacity and not in ad hoc capacity. There is no such distinction in the aforesaid Regulation. This view has also been taken by the Supreme Court in A. K. Boss v. Union of India, AIR SC 509 and in State of Madhyo Pradesh v. Laxmi Shanker Mishra, AIR SC 979.
11. The Judgment of this Court in Tulsi Ram v. State of UP. (supra) can obviously not prevail over the aforesaid judgments of the Apex Court. Moreover, paragraph 37 of the Judgment in Tulsi Ram's case (copy of which has been annexed as Annexure-15 to the writ petition) indicates that what cannot be taken into consideration is wholly illegal ad hoc appointment, whereas, in the present case respondent No. 5's ad hoc appointment had been approved by the D.I.O.S. fide Annexure-CA-3 tc the counter-affidavit and hence was legal. Hence also Tulsi Ram's case has no application. Thirdly. Tulsi Ram's case was regarding the post ol Principal of a Government College, and not a College run by a private management like the petitioner's College. It may be pointed out that earlier Regulation 6 of Chapter II o the U. P. Intermediate Educatlor Regulations had provided that for being eligible for promotion from C.T. to L.T. grade or from L.T. to Lecturer's grade a person was required to have £ years continuous, substantiue service in the next lower grade. After the enforcement of the U.P. Secondary Education Service Commission Act, 1982 this requirement of substantive service was deleted vide Rule 9 of the 1983 Rules made under the Act. The obvious reason was that the Legislature and Government were conscious of that fact that since selections by the Commission take a lot of time, ad hoc experience should not go waste. The same scheme has been continued under the 1995 Rules. Rule 14 of the 1995 Rules which deats with promotion requires 5 years continuous service, and not 5 years continuous substantive service. This indicates that wherever the Legislature or Government wanted substantive service (and not ad hoc service) as an eligibility requirement it made a specific provision to that effect, and when it did not its intention was that ad hoc experience should also be taken into consideration. This Court in Ram Swaroop v. State of U.R., 1996 (3) ESC 155 has held that ad hoc service can also be taken into consideration.
12. As regards the allegation that when the petitioner was appointed, there was a ban by the Government, in our opinion that does not make any difference in this case. If a person has in fact got the necessary qualification of four years teaching experience then merely because at the time when he was appointed there was a ban on appointments would not make any difference because we have to see actual teaching experience and the fact that there was a ban on appointment would be immaterial.
13. As regard the contention of learned counsel for the petitioners that respondent No. 5 has done M.Sc. in Agriculture and Agriculture is not a subject which is taught in the institution, it may be pointed out that a Principal/Headmaster of an institution is primarily concerned with the administration of the School or College. There is no requirement in any Act or Regulations that the Principal has also to teach. However, there is a G. O. dated 20.11.77 which requires the Principal to take 12 classes a week in the institution, but this G. O. does not specify which classes he has to teach. A Principal can, therefore, even teach classes 6 to 8. for which postgraduate degree in the subject is not necessary.
"Moreover. M.Sc. (Agrl) has been specifically mentioned as a qualification in Appendix A of Regulation 1 of Chapter II, of the Regulations (quoted above).
14. In view of the above discussion, I am of the opinion that respondent No. 5 was eligible to be appointed as Principal. Hence there is no force in this petition and it is dismissed.