HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 24.02.2015 Delivered on: 19.03.2015 Writ- A No. 538 of 2009 Vivek Mudgil Vs. State of U.P. & Others WITH Writ- A No. 19198 of 2009 [ENTITY] Vs. State of U.P. Thru Secy. Deptt. Of Secondary Edu. & Ors. Court No. 59 Hon'ble [ENTITY], J.
The present petition assails the validity of an order dated 10th December, 2008 passed by the U.P. Secondary Education Service Selection Board (respondent No. 6 herein), in terms of which the selection of the petitioner on the post of Principal of Saraswati Inter College, Jhansi has been cancelled.
In brief the order passed by the respondent No. 6 has come to be passed upon the Board concluding that the petitioner had teaching experience of 9 years 3 months as against the required 10 years and had therefore been incorrectly empanelled by it. The order itself, and it is so admitted to parties, came to be passed by the Board on the basis of a complaint letter received by the District Inspector of Schools, Jhansi on 18.7.2008. This petition was entertained by this Court on 15.1.2009 and on the said date the following order came to be passed' "Impleadment Application filed on behalf of Sri [ENTITY] today is taken on record and is allowed. The petitioner is directed to make necessary correction in the array of parties during the course of day.
By the impugned order, the appointment of the petitioner, as Principal in Saraswati Inter College, Sipriri Bazar, Jhansi has been cancelled by the Selection Board on the ground that the petitioner does not possesses the minimum 10 years of teaching experience as a lecturer and has excluded the period which the petitioner had spent in czechoslovakia for higher studies for the period 15.4.1992 to 7.3.1996 which period is included in the service period as per the letter of the Director of Education dated 29.7.2005, a copy of which has been annexed as Annexed as Annexure no. 6 to the writ petition. The petitioner further states that this letter was specifically placed before the Selection Board but the same has not been adverted to.
Sri [ENTITY], the learned counsel appearing for the Selection Board, Sri [ENTITY], the learned counsel appearing for newly impleaded [ENTITY] and the learned standing counsel for the respondent Nos. 1 to 3 are all granted three weeks time to file counter affidavit.
Issue notice to the respondent Nos. 4 and 5 by registered post A/D. Steps to be taken within a week.
List for admission after the expiry of four weeks, by which time, the said respondents may file a counter affidavit.
In view of the aforesaid, prima facie it appears that the period which the petitioner had spent in Czechoslovakia for higher studies, has not been taken into consideration and if this period is taken into consideration, the petitioner could possess the requisite number of years and becomes eligible for consideration for the post of Principal.
Consequently, till the next date of listing, the effect and operation of the impugned order dated 10.12.08 passed by the Selection Board shall remain stayed."
It was on the basis of the above order that the petitioner has continued to function as a Principal of the Institution in question till this matter was taken up for hearing by this Court. Insofar as the Respondent No. 7 herein is concerned, he is said to have been appointed Ad hoc Prinicipal with effect from 01.07.2000. He continued to function as such despite the empanellment of the Petitioner on 01.08.2002 in light of the litigation which ensued and till the Petitioner joined on the post on 15.07.2008. He thereafter claims to have functioned during the period when the selection of the Petitioner came to be cancelled by the Board and till this Court passed the interim order on 15.01.2009. The respondent No. 7 has since retired from service on 04.04.2009. He has separately petitioned this Court ([CASE NUMBER]) for being paid all emoluments and salaries of Officiating Principal for the period August 2008 to June 2009 and to compute his pension treating him to be the Principal.
Let the facts however first be noticed in some greater detail. The petitioner was appointed as a Lecturer in Physics and his services were regularized w.e.f. 12.1.1990. It appears that in response to an advertisement issued by the respondent No. 6 in 2002, the petitioner also applied for being selected to the post of Principal at Sarswati Inter College. The Board appears to have prepared a panel of selected candidates and in the said panel the petitioner stood selected for being appointed as Principal to the Institution in question. The name of the Petitioner was included in the panel constituted by the Board on 01.08.2002.
In the meantime, it appears that litigation ensued in this Court challenging the various selections made by the Board to the post of Principals of various Intermediate Colleges in the State of U.P. including the Institution in which the petitioner had been selected. The writ petitions met with failure before a Single Judge of this Court. However, when the said judgment was assailed in intra-Court appeals, a Division Bench of this Court allowed all the appeals and quashed the panel of selected candidates prepared by the Board. This judgment of the Division Bench in appeal was assailed before the Hon'ble Supreme Court of India which ultimately allowed all the appeals by a detailed judgment dated 16th May, 2008 and vacated all interim orders operating in respect of the panel prepared by the Board. It was post the judgment of the Apex Court laying the controversy to rest that the petitioner who had been empanneled on 01.08.2002 joined as Principal in the Institution in question on 15.07.2008.
The dispute however, appears to have arisen when a complaint with regard to the empanelment of the petitioner was made on 18th July, 2008 to the District Inspector of Schools, Jhansi. This complaint is said to have alleged and asserted that the petitioner did not have ten years of teaching experience as was required mandatorily for him being selected to the post of Principal. In terms of the [ACT] and more particularly [SECTION] thereof a candidate for appointment to a post of teacher is required to possess qualifications specified in [SECTION] of the Regulations framed under the [ACT]. [SECTION] of the Regulations framed under the Act, 1921 prescribe the minimum qualifications for appointment as Head of the Institution and teachers to be as such as prescribed in Appendix 'A'. Appendix 'A' specifies the essential qualifications required of a Head of an Institution and they being relevant for our purposes, are being extracted hereinbelow:-
Essential Qualifications Sl. No. Name of the post Essential Training experience Age Desirable qualifications Head of the Institution (1) should be trained M.A. or M.Sc. or M.Com or M.Sc. (Ag) or any equivalent Post-graduate or other degree which is conferred by any body as referred to in above para and should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree college affiliated with such institution as referred to in above mentioned first para, or at least four years teaching experience in classes 9-12 in anyinstitutioin recognised by Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by Board, or should possess at least four years experience as trained graduate Head Master in any Junior High School recognised by Deptt.
Provided that he/she should not be less than thirty years of age (2) Teaching experience of ten years in Intermediate classes of any recognised institution with first or second class postgraduate degree, or third class post graduate degree with 15 years' teaching experience.
(3) Post graduate diploma holder in Science; provided that he has has passed diploma course in first or second class and has served meritoriously for 15 years or 20 years respectively in any recognised institution after passing such diploma course.
Note- (1) At least second class post graduate degree and on special teaching experience of 10 years in Intermediate classes of recognised institution, training eligibility of of Asstt. teachers may be relaxed (As per the provisions in the Act).
(2) Teaching prior to training or after training both, are included in teaching experience.
(3) Higher classes means classes 9-12 and teaching experience of these classes is admissible for the post of Principal in Intermediate College.
Minimum 30 years The dispute itself arose in light of the fact that the petitioner proceeded on study leave w.e.f. 15th April, 1992 upto 8th March, 1996. It is not disputed by parties that this study leave was duly sanctioned and approved by the Government of India, the Institution where the petitioner was functioning as Lecturer as well as the District Inspector of Schools, Jhansi. The issue itself has arisen on account of the fact that if this period of study leave be not treated as and included in "teaching experience", the petitioner would have only nine years and three months of experience as against the required ten years on the date of his selection.
The Board has found that the study leave period of the petitioner was not liable to be included in teaching experience. It consequently held that the "teaching experience" of the petitioner was only nine years and three months and since it was short of the required ten years experience, it proceeded to annul the selection of the petitioner.
Sri [ENTITY], learned Senior Counsel appearing in support of this writ petition has submitted that the study leave period of the petitioner was liable to be taken into consideration and has in this connection relied upon the provisions of [SECTION] appearing in [SECTION] of the [ACT]. He submitted that in terms of the above provisions of the [ACT], the period spent by him on study leave was liable to be included for all purposes including the computation of "teaching experience". He has also submitted that the Board having once made the recommendation and having constituted the panel, it had no power to review the same. He has further submitted that even otherwise the order of the Board is clearly illegal inasmuch as it came to be passed without affording him any opportunity of hearing.
He has lastly submitted that this was not a case where the petitioner had concealed the fact that he had been on study leave. He has referred to the contents of the Application Form submitted by him before the Board wherein in Paragraph 13 he made a specific disclosure of him having been on study leave between the period 15th April, 1992 to 8th March, 1996. Elaborating his submissions, Sri [ENTITY] has contended that the research work for which he had gone to Czechoslovakia, was liable to be countenanced and included in "teaching experience" required for the post. On the strength of the above submissions, Sri [ENTITY] contends that the impugned order is liable to be set aside.
Sri [ENTITY] has further contended with reference to the language of [SECTION] of the Regulations framed under the Act, 1991 to contend that the qualifications prescribed in Appendix 'A' are with reference to the 'appointment' of the petitioner as a Principal and that the qualifications on the date of appointment were liable to be taken into consideration. He sought to submit that in any view of the matter in 2008 when he was actually appointed and permitted to join, he had already acquired more than ten years "teaching experience" and therefore, the selection and appointment of the petitioner was not liable to be set aside.
Sri [ENTITY], learned Advocate appearing for the respondent No. 7 and Sri [ENTITY], learned Senior Counsel have opposed this writ petition and have submitted that since the petitioner did not have the requisite qualifications, the Board was well within its right to annul the empanelment of the petitioner. Learned counsels for the respondents have submitted that the qualifications must be held by an Applicant on the date of advertisement and any subsequent improvement is not permissible. They would contend tht the crucial date and in fact the only cut-off date with reference to which the qualifications of a candidate are to be judged, is the advertisement. They have further referred to the advertisement itself which prescribed that the educational qualifications as well as the "teaching experience" required of the post would be computed with reference to the date of application. They submit that since admittedly the petitioner on 16th March, 2002 (the date on which he submitted the application), did not have ten years "teaching experience", he was not entitled to be considered for selection and, therefore, his empanelment which was an illegality, has been rightly set at naught by the impugned order.
Insofar as the issue of "teaching experience" is concerned, learned counsel for the respondents has relied upon the judgment rendered by a Single Judge of this Court of 29th January, 2010 passed in [CASE NUMBER], Dr. [ENTITY] Vs. State of U.P. And Others and submitted that the words "teaching experience" cannot mean deemed teaching experience and must be interpreted to mean actually teaching work undertaken by the candidate for a period of ten years. They have in this connection relied upon the following observations contained in the aforementioned judgment:-
"On the parameters as set out in the aforesaid judgment and looking into the requirement as provided under [SECTION] of the Regulations framed under [ACT], the incumbents who do not have to their credit requisite qualification, including teaching experience , qua said incumbents alternative eligibility criteria has been provided for. As far as petitioner is concerned, she has to her credit Master Degree in first division; she has to have 10 years teaching experience as Lecturer in Intermediate College. The question is as to whether said eligibility criteria is fulfilled and the petitioner has to her credit 10 years' teaching experience as Lecturer or not, for being appointed as Principal of the institution, which is the minimum eligibility criteria as provided under [SECTION] of the Regulations framed under [ACT].
The term "experience" has been defined as "knowledge or practical wisdom gained from what one has observed encountered or undergone". Teaching experience has to be teaching experience and not deemed teaching experience, in this background, it has to be seen as to whether 10 years teaching experience in Psychology was or was not to the credit of the petitioner. The factual position which emerges in the present case is that the petitioner has functioned as Lecturer in Psychology with effect from 28.08.1980 up to May, 1981, and thereafter from 08.07.1981 to 26th August, 1982 where after order of dispensation of service had been passed. Thereafter, petitioner has not functioned, and the said order of termination had been upheld by this Court clearly mentioning therein that the petitioner had full knowledge of the order of dispensation of her service, and merely because salary has been paid, it cannot be said that there was no dispensation of service. Hon'ble Apex Court has held that seven teachers who had got employment should be given seniority on the deemed situation. Once termination order had been upheld and the entire exercise which was undertaken was in respect of re-employment, then in this background since petitioner was not given appointment, her services were not liable to be clubbed and treated as teaching experience. Petitioner joined on being re-employed after absorption on 16.08.1991, and the last date for submission of application form in response to advertisement was 30.09.1998. Total services, which the petitioner completed at the second institution wherein she was absorbed, was six years eleven months and twenty seven days, and at the earlier institution, admitted position is that the petitioner had functioned from 28.08.1980 to May, 1981 and thereafter from 08.07.1981 to 25.08.1982, when resolution was passed by the Managing Committee dispensing with her services. This was the actual period for which the petitioner had functioned. Once this is the factual scenario, then by no stretch of imagination, it can be said that the petitioner had completed ten years service as Lecturer. The period for which she remained out of employment, cannot be counted or accepted towards teaching experience. The payment of salary which had been made to the petitioner from November, 1982 till October, 1983 and again for the month of December, 1984 will not make any difference, once order of dispensation of service had been upheld by this Court. In the facts of the case re-employment certainly connoted fresh contract of service, and no interference is feasible, as the petitioner did not have to her credit 10 years teaching experience as Lecturer in Psychology and she was not at all eligible for being appointed as Principal of the institution."
The primary consideration in the opinion of this Court is whether the period spent by the petitioner on study leave is liable to be included in 'teaching experience' or not. However, before proceeding to decide the said issue it would be relevant to first deal with the other contentions advanced by Sri [ENTITY].
[SECTION] falls in [SECTION] of the [ACT]. The said provision reads as under:
"146-A(13): Study leave will count as service for promotion and pension but not for leave. It will not affect any leave which may already be due to a Government servant; it will count as extra leave on half average pay and will not be taken into account in reckoning the aggregate amount of leave on half average pay taken by the Government servant towards the maximum period admissible under the [ACT]."
A bare reading of the above shows and establishes that the same cannot be of any assistance to the petitioner. All that the said provision lays down is that study leave would count as service for promotion and pension. The reason behind this is obvious. A person on study leave does not exit service or demit the post held by him. In light of the above counting of the said period towards promotion and pension cannot be faulted. This provision however by no stretch provides that the period spent on study leave would be liable to be included in 'teaching experience'. As was held by this Court in Dr. [ENTITY] (supra), 'teaching experience' must necessarily mean actual experience acquired by a person while performing the job attached to the post of a teacher. This issue is otherwise also no longer res integra. The Apex Court in [PRECEDENT] explained the position as follows:
"9. For the time being, we may assume that in view of fact that he had also acquired the qualification of B.Ed. in April 1989, his case also could be considered in terms of [SECTION]; although it is well-settled principles of law that the note appended to a statutory provision or the subordinate legislation must be read in the context of the substantive provision and not in derogation thereof. Five years' teaching experience for appointment to the post of Headmaster was a sine qua non. Such teaching experience was to be 'teaching experience' and not a deemed teaching experience.
10.In [PRECEDENT], this Court noticing a decision of a Full Bench of the Andhra Pradesh High Court in [PRECEDENT], observed: [PRECEDENT] "23. In [PRECEDENT] a Full Bench of the Andhra Pradesh High Court has noticed thus (An LT p. 544, para 31):
31[24]. The meaning of note as per [ENTITY] Law Lexicon, 1997 Edn. is a brief statement of particulars of some fact, a passage or explanation.
24. The note, therefore, was merely explanatory in nature and thereby the rigour of the main provision was not diluted."
11. Mr. [ENTITY], the learned Senior Counsel appearing on behalf of Appellant, however, has drawn to our attention to a circular letter dated 30.12.2005 issued by the Government of Kerala Finance (Rules) Department, from a perusal whereof it appears that the leave without allowance under [SECTION] for study purpose would carry service benefit in regard to seniority/promotion accumulation of HPL but would not be counted towards seniority/promotion and accumulation of earned leave.
13. Indisputably, Appellant was on study leave for the period 01.06.1991 to 28.02.1993. During the said period, he was not teaching. He did not gain any teaching experience during the said period. If the said period is excluded for the purpose of computing teaching experience as envisaged under [SECTION] of the Rules, the question of his being considered for promotion to the post of Headmaster would not arise. Eligibility condition must be satisfied before a person is considered for promotion/appointment in respect of a particular post."
This contention therefore, cannot be accepted by this Court.
Sri [ENTITY] had then contended that the Board had proceeded to annul his selection without affording any opportunity of hearing. Without prejudice to the above, he has further contended that the eligibility of the petitioner was liable to be deemed as existing on the date of his actual appointment. He had submitted that although the petitioner had been empanelled in 2002, he was permitted to join only in 2008 consequent to all litigation coming to an end and on the said date it could not be said that he did not have the requisite 10 years' 'teaching experience'.
Insofar as the issue of breach of principles of natural justice are concerned suffice it to state that the factual position is not disputed by Sri [ENTITY]. Admittedly on the date of application the petitioner did not have 10 years 'teaching experience'. The advertisement clearly specified that the qualifications of each candidates were liable to be judged as existing on the date of application. Even otherwise it is settled law that a candidate/applicant must possess the requisite minimum qualifications prescribed on the date of application and even if the said candidate obtains the said qualifications subsequently the same would not be a factor which would inhere to his benefit. The Court in this connection relies upon the judgment of the Apex Court in [ENTITY] Vs. State (NCT of Delhi) And Others; (2013) 11 SCC 58:-
14. In [PRECEDENT] Instructions this Curt held: (SCC p. 707, para 2) "2 It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment accordingl to the rules."
15. This Court in [PRECEDENT] "10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In th absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentiones a fixed date with referene to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence viz. Even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications Reference in this connection may also be made to two recent decisions of this Court in [PRECEDENT] and [PRECEDENT]."
17. A three-Judge Bench of this Court in [ENTITY] v. Chander Shekhar reconsidered and explained thejudgment of [ENTITY] (1993) observing:(Chander Shekhar case, SCC pp.21-22, para 6) "6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judge with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed dae, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment."
The Court in [ENTITY] further explained that the majority view in [ENTITY] (1993) was not correct, rather the dissenting view by [ENTITY], J. was correct as the Court held as under:(SCC p. 22, para6) "6 The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, [ENTITY], J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview." (emphasis added)
20. This Court lately in [PRECEDENT] held:(SCC p. 550, para 14) "14. [ENTITY] who does not possess the requisite quali cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See [PRECEDENT] and [PRECEDENT].)" (Emphasis supplied)
21. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification, i.e., eligibility, character verification etc. Clause 11 of the letter of offer of appointment dated 23.2.2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court.
22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our [ACT]. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement."
This Court further finds itself unable to grant to the petitioner any benefit of the fact that he had disclosed all particulars in his application form, The Board had clearly committed an illegality in empanelling the petitioner who admittedly on the date of application did not have the 10 years' experience required. This mistake committed by the Board cannot be of any assistance to the petitioner. The acceptance of such a submission would clearly amount to this Court premitting the perpetuation of an illegality. The powers of this Court conferred by [SECTION] of the [ACT] can never be exercised for such a purpose. One may on this score usefully refer to what the Apex Court observed in [ENTITY] (supra):-
"23. There is no obligation on the court to protect an illegal appointment. Extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance."
In light of the aforesaid conspectus of fact and the conclusions arrived at by this Court, it is constrained to hold that the order passed by the Board cancelling the selection of the petitioner was valid and justified. Accordingly and in view of the above conclusion, [CASE NUMBER] is liable to be and is accordingly dismissed. The interim order passed by this Court on 15th January, 2009 is hereby discharged.
Insofar as the case of the petitioner in [CASE NUMBER] is concerned, it is not disputed by the State-respondents that he was the seniormost teacher and that he had in fact functioned as such for the periods noticed hereinabove. In the opinion of the Court since the said petitioner had functioned as ad hoc Principal pending finalisation of the panel drawn up by the Board, he was rightly entitled to be paid emoluments of ad hoc Principal. It is also not disputed by parties that the said respondent No. 7 continued to function as ad hoc Principal post the cancellation of the selection of the petitioner and till the passing of the interim orders by this Court. Accordingly and in view of the above [CASE NUMBER] shall stand disposed of with a direction requiring the respondent No. 3 to consider all claims of the petitioner therein with regard to payment of emoluments attached to the post of ad hoc Principal for the period during which he may have actually discharged functions as such. The respondent No. 3 shall in this connection scrutinize all records and relevant papers and process the claims of the petitioner therein expeditiously and preferably within a period of two months from the date of production of a certified copy of the judgment of this Court.
Order Date:-19.03.2015 [ENTITY] ([ENTITY], J.)