Allahabad High Court
Sri Kant Mishra vs State Of U.P. And Ors. on 17 November, 2003
Equivalent citations: 2004(2)AWC1037
JUDGMENT N.K. Mehrotra, J.
1. These two writ petitions relate to the dispute over the post of Principal (ad hoc) in Krishak Intermediate College, Maholi, Sitapur between Sri Kant Mishra and Diwakar Prasad Mishra, the two lecturers in the same college.
2. The first Writ Petition No. 57 (S/S) of 1999 has been filed by Shri Sri Kant Mishra for quashing the impugned order dated 15.12.1998 as contained in Annexure-1 to that writ petition and for issuing a writ of mandamus commanding the opposite parties not to give effect, to the impugned order dated 15.12.1998 and not to disturb the petitioner working as Principal of the institution and to pay the salary to the petitioner for the post of Principal, regularly.
3. By the impugned order dated 15.12.1998 the Joint Director of Education in compliance of the order of this Court passed in Writ Petition No. 3119 (S/S) of 1998, has decided the claim of the petitioner and Shri Diwakar Prasad Mishra opposite party No. 6 by holding that the petitioner Sri Kant Mishra does not fulfil the essential qualification for the post of Principal as given in Appendix 'A' of Chapter II of U.P. Intermediate Education Act and Regulations, 1921 and the petitioner is senior to Shri Diwakar Prasad Mishra in accordance with the provision of seniority provided under Section 3 (1) (kha) of U. P. Intermediate Education Act and Regulations, 1921. It has also been held by the Joint Director in the impugned order that the petitioner shall not be appointed on the post of Principal against the ad hoc vacancy with effect from 30.6.1998 consequent upon the retirement of the then Principal. The petitioner has challenged only that portion of the impugned order by which it has been held that he does not fulfil the essential qualification to hold the post of Principal in the college.
4. According to the petitioner, the ground for holding him disqualified for the post of Principal on the basis of the qualification prescribed in Appendix-A of Chapter II of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 'Act') was absolutely non-existent and he was rightly promoted on 1.7.1998 by the Committee of Management in accordance with the provision under Section 18 (4) of the U. P. Secondary Education (Service Selection Board), Act, 1982 (hereinafter referred to as the 'Service Selection Board Act') as amended by U.P. Act No. 15/95 and in accordance with the provisions contained in paragraph 4 (1) (a) of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the 'Removal of Difficulties Order').
5. According to the petitioner, in Radha Raizada v. Committee of Management, 1994 (3) UPLBEC 1551, it has been settled by the Full Bench of this Court that the vacancy for the post of Principal in an intermediate college is required to be filled in by the senior most teacher of the institution in the lecturer grade ; and in the case of the High School, by the senior most teacher of the institution in the trained graduate grade on the basis of the seniority subject to rejection of unfit. In case of such promotion, no approval of the D.I.O.S. is required and only an intimation to the D.I.O.S, of such appointment, is sufficient. The petitioner being the senior most lecturer, is entitled to be promoted on the post of Principal on ad hoc basis.
6. There is a long history of litigation between the petitioner and the opposite party No. 6. The petitioner was initially appointed on 22.7.1966 as a lecturer in Chemistry and on the same date, the opposite party No. 6 was also appointed as lecturer in Chemistry, but the petitioner being elder in age than the opposite party No. 6, was senior to him in view of the provisions contained in Regulation 3 (1) (b) of the Chapter II of the Regulations framed under the Act.
7. On 14.8.1976, the management of the college prepared the seniority list of lecturers showing the petitioner senior to the opposite party No. 6. The opposite party No. 6 made a representation to the President of the Committee of Management, who allowed the representation on 27.8.1976 and declared the opposite party No. 6 as senior to the petitioner.
Afterwards, the petitioner made a representation to the President on 3.9.1976. The President of the Committee of Management after taking into consideration the representation of the petitioner, cancelled his earlier order dated 27.8.1976 and held that the petitioner was senior to the opposite party No. 6. The order of the President dated 3.9.1976 is Annexure-2.
8. The opposite party No. 6 preferred an appeal before the D.I.O.S., Sltapur who after hearing both the parties, declared the petitioner as senior to the opposite party No. 6. Copy of the order of the D.I.O.S. dated 25.9.1976 is Annexure-3. Consequently, the Principal of the college declared the petitioner senior on 4.10.1976 vide Annexure-4. The opposite party No. 6 challenged this order in Civil Suit No. 292/1977 in the Court of Munsif, Sitapur which was dismissed on 26.10.1978 on the ground that the decision of the D.I.O.S. was not assailable in the civil court. The opposite party No. 6 preferred an appeal before the District Judge, Sitapur which was allowed by the 1st Additional District Judge, Sitapur and the matter was remanded. The order of the Additional District Judge, Sitapur was challenged in the Second Appeal No. 655 of 1980 by the petitioner. This Court allowed the second appeal vide order dated 11.8.1998 and set aside the judgment and decree passed by the Ist Additional District Judge and upheld the order dated 26.10.1978 passed by the Munsif, Sitapur in Regular Suit No. 292/77. The result of this judgment is that the orders dated 25.9.1976 Annexure-3 of the D.I.O.S. by which the petitioner was declared senior to the opposite party No. 6, is still intact upto this date.
9. The Joint Director of Education has also accepted this fact in the impugned order Annexure-1. On 27.5.1998, the Committee of Management vide its Resolution No. 5, resolved to give charge of the post of Principal to the petitioner after taking into consideration his seniority.
10. Opposite party No. 6 Shri Diwakar Prasad Mishra filed a Writ Petition No. 2679 (S/S) of 1998 challenging the resolution dated 27.5.1998 of the Committee of Management relating to the question of ad hoc promotion for the post of Principal after retirement of Shri Sri Ram Pandey on 30.6.1998 and sought a writ of mandamus commanding the respondents to permit him on the post of Principal on the retirement of Sri Ram Pandey. This Court passed an interim order on 22.6.1998 as contained in Annexure-7 directing the D.I.O.S. to decide the representation of the petitioner within a period of two weeks. In the meantime, Shri Sri Ram Pandey retired from the post of Principal on 30.5.1998 and in pursuance of the resolution dated 27.5.1998, the petitioner took over the charge of the office of the Principal on 30.6.1998. The D.I.O.S. was informed and requested to attest the signature of the petitioner to work on the post of the Principal vide Annexure-9. The petitioner as well as the opposite party No. 6 both, made representations to the D.I.O.S. in pursuance of the interim order of this Court passed in Writ Petition No. 2679 (S/S) of 1998. The D.I.O.S. upheld the promotion of the petitioner vide order dated 10.7.1998. Copy of the order of the D.I.O.S. is Annexure-10. According to the petitioner, the order of the D.I.O.S. as contained in Annexure-10, he possesses requisite qualification, i.e.. the trained postgraduate diploma with second division having 51% marks from the University of Lucknow and teaching experience of about 31 years.
11. The respondent No. 6 challenged the order dated 10.7.1998 of the D.I.O.S. by filing Writ Petition No. 3119 (S/S) of 1998 for quashing the order (Annexure-10) dated 10.7.1998 and for his appointment on the post of Principal of the College on ad hoc basis with all consequential benefits. This writ petition was finally disposed of by this Court on 30.7.1998 directing the Deputy Director of Education to consider and dispose of the disputes between the petitioner and the respondent No. 6 in respect to their qualification and seniority for the purpose of appointment on the post of Principal of the College in question on ad hoc basis within a period of one month. Copy of the order of this Court is Annexure-11. Both the parties submitted their representations and after giving due opportunity of hearing the impugned order Annexure-1 has been passed by the Joint Director of Education. According to the impugned order, the petitioner is not qualified for the post of Principal although he was adjudged senior most lecturer in the college.
12. The main contentions of the petitioner is that the Joint Director of Education did not correctly construe the qualifications prescribed in Appendix-A of the Act for the post of Principal. The qualification prescribed in Appendix-A of the Act are as follows :
"(1) trained M.A., or M.Sc. or M.Com., or M.Sc. (Ag.) or any equivalent post-graduate or any other degree which is awarded by corporate body specified in paragraph 1 of Appendix-A and should have at least teaching experience of four years in Classes IX to XII in any training institute or in any institution or University specified in Appendix-A 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, subject of course to the condition that the candidate should not be below 30 years of age ; or (2) having first or second class post-graduate degree along with teaching experience of ten years in intermediate classes of any recognised institution or a third class post graduate degree with teaching experience of 15 years; or (3) trained post-graduate diploma holder in Science, subject to the condition that he should have passed the examination of the diploma course in first or second division and should have sufficiently worked for 15 or 20 years respectively after passing examination of such diploma course."
13. According to the petitioner, he possesses the requisite qualification as mentioned in paragraph 3 of the Appendix-A cited above as he possesses the Post Graduate Diploma in Chemistry with 51% marks and is lecturer since 1966. The post-graduate diploma held by the petitioner is a condensed diploma which was obtained by the petitioner in pursuance of the direction contained in the letter of the Director of Education, U.P. Copy of the letter of the Director Education is Annexure-21 to this writ petition.
14. It is further contended by the petitioner that Section 18 (4) of the Service Selection Board Act which was amended by Act No. 15/95 provides for appointment to the post of Principal by ad hoc promotion of the senior most lecturer of the institution and in paragraph 4 (1) (a) of the Removal of Difficulties Order, it is provided that every vacancy on the post of Head Master of an institution may be filled in by promotion of the senior most teacher of the school and in the case of an intermediate college by the senior most teacher of the institution in the lecturer grade. Director of Education vide his letter dated 24.12.1988 has directed to treat the post-graduate diploma holders as automatically exempted from training and in this situation they are not disqualified for the post of the Head Master/Principal. The letter of the Director. Education in Annexure-22. It is further submitted by the petitioner that a Division Bench of this Court in a bunch of 45 petitions led by Civil Misc. Writ Petition No. 40849 of 1997 : Tulai Ram and Ors. v. State of U.P. and Ors. issued 15 direction vide judgment dated 13.5.1998 and one of the directions was that the candidates who are working as lecturers in Government aided institutions and have three years experience of teaching and were drawing salary from the treasury or Government funds were also entitled for being considered and in view of that direction also the petitioner is entitled to the post of Principal, a copy of the relevant portion of the judgment is Annexure-24 to the writ petition. According to the petitioner, although the division is not mentioned in the diploma certificate but the University of Lucknow awards Second Class Degree in any subject on obtaining 48% or more marks while the petitioner obtained 51% marks in the said diploma course and the Joint Director of Education should have inferred the division from the marks obtained. According to the petitioner, the only requirement to work as ad hoc Principal is that the person should be senior most lecturer in the college as provided under Section 18 (4) of the Service Selection Board Act, 1982.
15. The opposite party No. 6 has filed counter-affidavit. It is contended by the opposite party No. 6 that the petitioner is only B.Sc. and does not have any post-graduate degree and he is also not a trained teacher. The petitioner was appointed on 22.7.1966 against the leave vacancy of Shri Maya Prakash Mishra while the opposite party No. 6 was appointed against the substantive vacancy by appointment order dated 22.7.1966. Shri Maya Prakash Mishra afterwards left the service. Therefore, the petitioner continued as lecturer and the vacancy was treated to have become substantive. On 31.1.1973, the D.I.O.S. held the respondent No. 6 as senior and entitled to work as Head of the Department. On 27.8.1976 the management committee held the opposite party No. 6 as senior to the petitioner. The opposite party No. 6 claims himself to be the senior most teacher in the college and on the basis of the seniority, he claims his ad hoc promotion on the post of Principal. The Committee of Management by resolution dated 27.5.1998 directed the retired Principal to hand over the charge to the petitioner. The opposite party No. 6 challenged this order by filing the Writ Petition No. 2679 (S/S) of 1998. This Court directed the D.I.O.S. to decide the representation. The D.I.O.S. upheld the resolution of the Committee of Management to handover the charge as ad hoc Principal of the college to the petitioner and therefore, the respondent No. 6 filed Writ Petition No. 3119 (S/S) pf 1998 and in that writ petition, this Court directed the Deputy Director of Education to decide the dispute under the Removal of Difficulties Order, 1981. The main contention of the opposite party No. 6 is that the petitioner does not fulfil the essential qualification for the post of Principal and he being senior, is entitled to take charge of the Principal.
16. Opposite party Nos. 1 to 4 also filed a counter-affidavit. It was contended by the opposite party Nos. 1 to 4 that the petitioner does not fulfil the essential qualification for the post of Principal and therefore, he cannot be given the charge of the post of Principal. Opposite party Nos. 1 to 4 admitted the petitioner being senior to the opposite party No. 6 but since the petitioner does not possess the essential qualification, he cannot be appointed as Principal in the ad hoc arrangement. It is further contended that the petitioner is neither post-graduate nor trained teacher.
17. The petitioner has filed rejoinder-affidavit reiterating the averments made in the petition. The petitioner has also filed a supplementary affidavit alleging therein that the Director of Education has issued a Circular dated 24.12.1988 Annexure-S.A.-1 in which it has been provided that those teachers who possess the qualification of trained Post-Graduate Diploma qualification, are eligible to their appointment on the post of Principal. In view of the aforesaid circular, the petitioner is fully eligible and entitled to hold the post of Principal.
18. Diwakar Prasad Mishra, opposite party No. 6 has filed Writ Petition No. 2623 (S/S) of 1999 for quashing the impugned order dated 29.4.1999 as contained in Annexure-1 to the writ petition and for a writ of mandamus restraining the opposite party No. 7 Sri Kant Mishra from functioning and discharging the duties from the post of Principal with a direction to the opposite party No. 6 to allow the petitioner Diwakar Prasad Mishra to work as ad hoc Principal in the said college. Impugned order Annexure-1 is the order dated 29.4.1999 by which Madhyamik Shiksha Parishad after exercising the power under Section 11 (3) of the U.P. Intermediate Education Act has exempted Sri Kant Mishra from the requirement of essential qualification of training. The case of the petitioner Diwakar Prasad Mishra is that under Section 11 (3) of the Intermediate Education Act, Manyta Samiti of Madhyamik Shiksha Parishad has no power to relax any person from the training qualification. However, under Section 16 (E), procedures for selection of teachers and Head of the Institution have been provided under which only exemptions can be given to the persons with regard to their education experience and other attainments. Section 11 and Section 16 (E) (3) of the U.P. Intermediate Education Act are as follows :
"Section 11. Powers and Duties of the Chairman.--(1) It shall be the duty of the Chairman to see that this Act and the Regulations are faithfully observed and he shall have all powers necessary for this purpose.
(2) The Chairman shall have power to convene meetings of the Board, shall call a meeting at any time after due notice, on a requisition signed by (not less than one fourth of the total Membership of the Board) and stating the business to be brought before the meetings.
(3) In any emergency, arising out of the administrative business of the Board, which, in the opinion of the Chairman, requires that immediate action should be taken. The Chairman, shall take such action as he deems necessary and shall thereafter report his action to the Board at its next meeting.
(4) The Chairman shall exercise such other powers as may be prescribed by the Regulations."
"Section 16 (E) (3).--No person shall be appointed as Head of the Institution or teacher in an institution unless he possess the minimum qualifications prescribed by the Regulations :
Provided that a person who does not possess such qualifications may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments."
19. It is averred that in Writ Petition No. 20261/1988 : Bans Lal Singh v. D.I.O.S., Kanpur Dehat and Ors., by a Division Bench of this Court it has been held that the requirement of training appears to be one of the mandatory qualification to be appointed as Principal. It is also stated that under Section 16 (F) and (FF) in Chapter II of the U.P. Intermediate Education Act, 1921, the procedure for appointment on the post of Principal and teachers have been prescribed and it has been provided that the minimum qualification for appointment on the post of Principal and teacher shall be as prescribed in Appendix-A and Section 11 of the Act and it does not contemplate any power for relaxing the prescribed qualification.
20. The impugned order dated 29.4.1999 is against the rules and regulations and law laid down by this Court.
21. Sri Kant Mishra has filed counter-affidavit in Writ Petition No. 2623 (S/S) of 1999. It has also been stated that he is having Post Graduate Diploma in Chemistry and he had applied for exemption from the training and Manyta Samiti has recommended for the exemption from minimum qualification prescribed for the post of the head of the institution under Regulation 2 (3) of the Chapter VII of the Regulations framed under the U.P. Intermediate Education Act, 1921 and thereupon the competent authority has granted the exemption to the deponent from training and same was communicated vide impugned order. It is also stated that Section 22 of the U. P. Intermediate Education Act provides that no order or decision made by the Board or any of its committee in exercise of its powers conferred by or under the Act, shall be called in question in any court. Under Section 11 (3) of the Act, the Chairman is empowered to exercise his power in such cases. Section 16 (E) (3) of the Act provides for exemption. In order to decide these two writ petitions, the following three questions are required to be answered by this Court :
(i) Whether for ad hoc promotion on the post of Principal in aided educational institutions, any qualification is required to be looked into or only the senior most lecturer, is entitled to be promoted as ad hoc Principal till the regularly selected Principal joins,
(ii) Whether Sri Kant Mishra possess the required minimum qualification as provided in Appendix-A of U. P. Intermediate Education Act, 1921.
(iii) Whether the order dated 29.4.1999 impugned in the Writ Petition No. 2623 (S/S) of 1999 granting exemption of training qualification to Shri Sri Kant Mishra under Section 11 (3) of the U.P. Intermediate Education Act, is legal and valid.
22. U.P. Secondary Education (Service Selection Board) Act, 1982 was enacted for prescribing procedure for the selection of teachers in the institution recognised under the Intermediate Education Act, 1921.
23. Section 32 of the Service Selection Board Act provides that the provisions of Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not in consistent with the provisions of this Act or the rules made thereunder, shall continue to be in force for the provision of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. Under Section 33, the State Government was empowered to issue the notified order for the purposes of removing any difficulty in implementing the provisions of that Act.
24. Section 18 (4) of the Service Selection Board Act was amended by U.P. Act No. 15/95 and after the amendment, Section 18 of the Service Selection Board Act is as follows :
"18 (4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade."
25. Paragraph 4 (1) (a) of Removal of Difficulties Order referred to by the learned counsel for the petitioner is as follows :
"4 (1). Ad hoc appointment by promotion.--Every vacancy in the post of the Head of an institution may be filled by promotion ;
(a) In the case of an Intermediate College, by the senior most teacher of the institution in the Lecturer's grade;"
26. After referring the aforesaid two provisions the learned counsel for the petitioner has referred a Full Bench judgment. In Radha Raizada v. Committee of Management, Vidhyawati Darbari Girls Inter College and Ors. (supra), Full Bench of this Court has held that the criteria for ad hoc appointment to the post of Principal is by promotion keeping in view the seniority subject to rejection of unfit. The ad hoc appointment by direct recruitment against short term vacancy can only be restored to only after it is found that the said vacancy cannot be filled in by promotion. The ratio of the judgment of the Full Bench is that the Removal of Difficulties Order which were issued under Section 33 of the Service Selection Board Act are valid and the procedure for ad hoc appointment which was given under Section 18 of the Service Selection Board Act and the Removal of Difficulties Order is the legal and valid procedure.
27. No doubt under the law prevailing at the time of ad hoc promotion of the petitioners provides that for ad hoc promotion on the post of Principal senior most lecturer is entitled to be promoted as ad hoc Principal till the regularly selected Principal joins but the question whether for the ad hoc promotion, minimum qualification as prescribed under the Act is required or not, has already been settled by this Court in a number of decisions and there is no occasion to differ from those decisions.
28. In Shamshul Zama v. D.I.O.S., Chandauli, 2001 (3) ESC 1131 (All), this Court has held that the prescribed minimum qualification is required for holding the post of Principal as ad hoc.
29. In Special Appeal No. 756 of 2001 filed by Shamshul Zama, the Division Bench comprising Hon'ble Mr. Justice G.P. Mathur and Hon'ble Mr. Justice U.S. Tripathi has dealt with this question elaborately. Hon'ble Mr. Justice G.P. Mathur was one of the Hon'ble Judges in the Full Bench in Radha Raizada's case relied on by the learned counsel for the petitioner. This Division Bench in Shamshul Kama's case has referred Sub-section (3) of Section 16 (E) of the U.P. Intermediate Education Act which provides as follows :
"Section 16-E (3).--No person shall be appointed as Head of the Institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the regulations :
Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his educational experience and other attainments."
30. This Division Bench has also referred Rule 5 of the U. P. Secondary Education Service Selection Board Rules, 1998 which reads as under :
"Rule 5. Academic Qualification.--A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act."
31. By referring the aforesaid Rule 5, the Division Bench has inferred from the word 'appointment' used in Rule 5 that this rule clearly embarrasses within its sweep the kind of appointment whether substantive or an ad hoc appointment. Therefore, if one takes into consideration all the relevant statutory provisions, there can be no scope from the conclusion that a person who does not possess prescribed qualification, cannot be appointed as ad hoc Principal.
32. Same view was taken in Civil Misc. Writ Petition No. 3236 of 2001, Shiv Nath Singh v. Deputy Director of Education, Varanasi and Ors. decided on 2.2.2001. Therefore, in view of the earlier settled position I hold that the minimum prescribed qualification is required for the purpose of promotion as ad hoc Principal.
33. Now the next question is whether Sri Kant Mishra possesses the required minimum qualifications as provided in Appendix-A of the U.P. Intermediate Education Act, 1921 as referred above. Admittedly, petitioner Sri Kant Mishra possesses B.Sc. with Post Graduate Diploma in Chemistry. Question is whether this qualification is one of the minimum qualifications as provided in Appendix-A of the U. P. Intermediate Education Act or not.
34. After taking into consideration this qualification, in a number of cases, this Court has held that this qualification is not a trained Post Graduate Diploma. In Shamshul Zama v. D.I.O.S, (supra), Division Bench in special appeal filed by Shamshul Zama, it has been held that Shamshul Zama holding post Graduate Diploma in Zoology does not hold trained Post Graduate Diploma and therefore, he was not qualified for the post of Principal as ad hoc. Same view was taken in Shiv Nath v. Deputy Director of Education, Writ Petition No. 3236 of 2001 (supra). Further in Writ Petition No. 22221 of 1995, Jagdish Prasad Sharma v. D.l.O.S. decided on 6.9.1995, Bans Lal Singh Sengar v. D.I.O.S., 1989 (1) UPLBEC 425 (DB), this Court held that a person holding B.Sc. with Post Graduate Diploma is not qualified to be appointed as ad hoc Principal. Same view was taken in Harihar Prasad Kushwaha v. Director of Education, (2001) 2 UPLBEC 1708 and Sanjay Kumar Singh v. D.I.O.S., (1997) 3 UPLBEC 2210.
35. Learned counsel for the petitioner Sri Kant Mishra has filed a copy of the judgment in 45 bunch cases in Civil Misc. Writ Petition No. 40849 of 1997, Tulai Ram. and Anr. v. State of U.P. and Ors., which is Annexure-24. Learned counsel for the petitioner has referred Direction Nos. 1 and 8 in this judgment. I am of the view that these directions are of no help to the petitioner for holding him qualified for the post of Principal in an aided intermediate college in view of the aforesaid settled legal position.
36. The petitioner has also filed a supplementary affidavit for placing on record a Circular of Deputy Director of Education dated 24.12.1988 Annexure-S.A.-1 in which it has been directed that person possessing Post-Graduate Diploma (P.G.D.) being passed in Ist or IInd Division with experience of 15 or 20 years, should also be treated as qualified to hold the post of Principal but this circular is against the decisions of this Court referred above. Therefore, this circular is of no help to the petitioner Sri Kant Mishra.
37. I am inclined to agree with the view taken in the earlier cases cited above and hold that Sri Kant Mishra. does not possess the required minimum qualification as provided in Appendix-A of the U.P. Intermediate Education Act.
38. Now the next question is whether the order dated 29.4.1999 impugned in Writ Petition No. 2623 (S/S) of 1999 granting exemption of training qualification to Sri Kant Mishra under Section 11 (3) of the U.P. Intermediate Education Act is legal and valid.
39. By the impugned order Annexure-1 Additional Secretary, Madhyamik Shiksha Parishad on the recommendations of Manyta Samiti after exercising power under Section 11 (3) of the U.P. Intermediate Education Act has exempted Sri Kant Mishra from the training for the post of the Principal Section 11 of the U.P. Intermediate Education Act is as follows :
"Section 11 (3).--In any emergency, arising out of the administrative business of the Board, which, in the opinion of the Chairman, requires that immediate action should be taken. The Chairman, shall take such action as he deems necessary and shall thereafter report his action to the Board at its next meeting.
40. Sub-section (3) of Section 11 nowhere empowers the Manyta Samiti or the Chairman of the Madhyamik Shiksha Parishad to exempt any Principal from holding the essential qualification. However, there is a provision under Section 16 (E) (3) which is as follows :
"Section 16 (E) (3).--No person shall be appointed as Head of the Institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the regulations :
Provided that a person who does not possess such qualifications may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments."
41. Here in the instant case, Madhyamik Shiksha Parishad (Board) has not exempted the essential qualification in the case of the petitioner Sri Kant Mishra by exercising the power under Section 16 (E) (3).
42. In the instant case, relaxation from training has been given to the petitioner Sri Kant Mishra and prima facie it appears that he does not come within the ambit of Sub-rule (3) of Section 16E of the Act in which exemption from qualification has been provided as a reward for capability as an educationist or on the basis of certain attainments in the field of Education. Moreover. Rule 5 of the U.P. Secondary Education Service Selection Board Rules, 1998 which have been framed under Secondary Education Service Selection Board Act provides that a candidate for appointment to a post of teacher must possess qualification specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921. There is no provision of relaxation of essential qualification under the U.P. Secondary Education Service Selection Board Act which has the overriding effect on the Intermediate Education Act. The qualification which is required under the U.P. Secondary Education Service Selection Board Act can be exempted only by a provision under the Service Selection Board Act and not by any other method.
43. The contention of the learned counsel for the opposite party Sri Kant Mishra in Writ Petition No. 2623 (S/S) of 1999 that in view of the provision of Section 22, order or decision made by the Board or any of its committee in exercise of its power conferred by or under the Act, cannot be called in question has no force. The word 'Court' referred in Section 22 of the U. P. Intermediate Education Act does not include the High Court. Wherever in any statute, the word 'Court' is used, it shall never include the High Court. Therefore, this contention that the exemption granted in favour of Sri Kant Mishra cannot be looked into, is rejected.
44. Learned counsel for Shri Diwakar Prasad Mishra opposite party No. 6 of Writ Petition No. 57 of 1999 has assailed that portion of the order contained in Annexure-1 of Writ Petition No. 2623 of 1999 by which Shri Sri Kant Mishra has been adjudged senior to Shri Diwakar Prasad Mishra. In my opinion, seniority cannot be assailed only by placing an argument at the time of final hearing. Even if for argument sake, it is accepted that the argument challenging the seniority of Shri Kant Mishra can be entertained. In that case, I am of the view that the seniority of Shri Sri Kant Mishra has been settled once for all in several orders and the decisions of various authorities as cited above.
45. In Smt. S.K. Chaudhary v. Manager, Committee of Management of Vidyawati Darbari Girls College, 1991 (1) UPLBEC 250, a Full Bench of this Court relying on Hon'ble Supreme Court's decision in AIR 1975 SC 1269 has held that the Court will not interfere with the seniority list which had remained in existence for a long time and which had become final. Therefore, the question of seniority cannot be reopened.
46. Therefore, in my opinion the exemption granted under Section 11 (3) of the Act vide order dated 29.4.1999 is not legal and valid exemption.
47. In view of the above, the Writ Petition No. 57 (S/S) of 1999 is dismissed and Writ Petition No. 2623 (S/S) of 1999 is hereby allowed. Impugned order dated 29.4.1999 contained in Annexure-1 of the Writ Petition No. 2623 (S/S) of 1999 is hereby quashed.