IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 604 of 2010 (M/S) Committee of Management Through its Manager Anil Kumar Goel ……Petitioner Versus State of Uttarakhand and others. …….Respondents Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. Subhash Upadhyaya, Brief Holder for the respondents. Dated:-14-09-2010 Hon’ble B.S.Verma, J. Heard learned counsel for the parties. Learned counsel for the parties have agreed to dispose of this petition finally at the admission stage itself as pleadings of both the parties have already been exchanged. By means of this writ petition, the petitioner has sought following reliefs:- “I. Issue a writ or direction in the nature of certiorari quashing the impugned instructions issued by the Secretary by letter dated 19th April 2010 (Annexure-22), office order dated 20th April, 2010 (Annexure No. 23) and also the instruction issued by the Director by letter dated 19th April, 2010 (Annexure No. 21) and the instruction issued by the DEO Dehradun by office letter dated 20th April, 2010. II. Issue a writ, order or direction in the nature of mandamus directing the respondents to conclude and finalize the selection process for filling up the post of Principal in Sanatan Dharam Girls Inter College Mussoorie and the entire exercise be completed within a stipulated period to be fixed by this Hon’ble Court. II(A). Issue a writ, order or direction in the nature of certiorari quashing the order dated 27.04.2010 (Annexure No. 26) 2 III. Issue any suitable writ, order or direction, which this Hon’ble Court may deem fit and proper on the basis of the facts and circumstances of the case. IV. Award the cost of the petition to the petitioner.” During the course of arguments, learned counsel for the petitioner states that he does not want to press the relief for quashing order dated 20.04.2010 (Annexure-23 to the writ petition). Therefore, relief for quashing order dated 20.04.2010, is dismissed as not pressed. Briefly stated the facts of the case are that petitioner institution- Sanatan Dharam Girls Inter College, Mussoorie (herein after referred as the Institution for short), is an institution imparting education upto the level of intermediate and is within the purview of grant in aid. The institution is being run by a Committee of Management. The post of Principal is lying vacant in the Institution and at present the same is being occupied by one Smt. Archana Rani, who is not eligible for the post, as per the Rules, as she has not completed five years substantive service as a Lecturer. Uttaranchal School Education Act, 2006, i.e. Act No. 8 of 2006 (herein after referred as the Act for short), was enacted by a notification and came into force with effect from 22.04.2006. Section 24 of said Act provides a provision for framing the Regulations. However, as no regulations were framed consequently, the Government vide order dated 27.06.2007 (Annexure-1 to the writ petition), suspended all the selection process in aided institutions till the Regulations are framed. Pursuant to notification, published in the Government Gazettee on 10.07.2009, the regulations have been framed in exercise of the powers, as provided under Section 24 of the Act. It is further stated in the writ petition that on 27.07.2009 (Annexure-3 to the writ petition), earlier order dated 27.06.2007, was cancelled by Secretary (respondent No. 1) and direction was given to proceed for selection process in accordance with regulations. Thereafter, petitioner institution wrote letter dated 10.09.2009 (Annexure-5 to the writ petition), seeking approval of District Education Officer for publishing the advertisement to fill up the post of Principal by direct recruitment. Vide letter dated 02.12.2009 (annexure-6 to the writ petition), permission and approval for publication of the advertisement was granted by the District Education Officer, Dehradun. Thereafter, the petitioner Institution, published an advertisement in local newspaper on 07.02.2010 (Annexure-15 to the writ petition). Pursuant to the advertisement, 21 persons applied for the post of Principal. A Selection Committee was also constituted by the Additional Director of Education vide letter dated 31.03.2010 (Annexure-17 to the writ 3 petition). The said Selection Committee, conducted an interview on 18.04.2010 but on 19.04.2010 (Annexure-20 to the writ petition), Hon’ble Minister of School Education, wrote a letter to the Director, Education stating that despite the ban imposed on selection process in the private aided institutions, the selection is being made in Sanatan Dharam Girls Inter College, Mussoorie, therefore, directed that till further orders no appointment be approved in the Institution. Pursuant to the direction given by the Hon’ble Minister, the Director, Education wrote a letter dated 19.04.2010 (Annexure-21 to the writ petition) to the Additional Director directing not to approve the selection process on the post of Principal in the Institution. Thereafter, vide order dated 27.04.2010 (Annexure-26 to the writ petition), respondent No. 1 had stayed the entire selection process setting aside the Government Order dated 03.02.2010. Hence this petition has been filed by the petitioner for redressal of its grievance. A counter affidavit has been filed on behalf of respondent No. 1. The main stand taken by respondent No. 1 is in para-3 of the counter affidavit, which is being reproduced as under:- “3(vi) That, subsequently, in pursuance of the letter dated 22.12.2009 of the petitioner Institution requesting for relaxation from ban on appointments in Non-Government aided institution, the matter was referred before the Government for consideration and vide Government Order dated 03.01.2010, the Government had decided to lift the ban on appointments to the post of Principal/Head Master, in those aided Non-Government Institutions in the State, in which the Incharge/Officiating Principals/Head Masters do not fulfill the eligibility criteria for being appointed as per the provisions of the Uttarakhand School Education Act, 2006. The beneficiary of the said Govt. Order dated 3/1/2010 was the petitioner Institution including others. (vii) That in the matter of exemption from ban on appointments to only such institutions in the State, the public representatives made requests before the Government to unify the selection process of all the Non-Government Institutions in the State and after due consideration at the Government level it was decided that the relaxation from ban to such institution be withdrawn and consequently, the Government Order No. 291/xxiv-4/2010, dated 19th April 2010 has been issued in the public at large, which is totally valid and sustainable. 4 (viii) That it is respectfully submitted that vide subsequent Govt. Orders dated 20/4/2010 some modification has been made in the Government Order dated 19/4/2010 and thereafter, vide Govt. Order dated 27/4/2010 the State Government has cancelled the Govt. Order dated 3/2/2010 (3/1/2010) in large public interest considering the grievances of the public representatives for uniformity in selection in whole of the State. (ix) That it is relevant and pertinent to mention here that in the matter of ban on appointments in the Non-Government Institution within the State, a meeting of the Uttarakhand Vidyalayee Shiksha Parishad (Uttarakhand School Education Board), Ramnagar was convened on 6/5/2010, in which the Director of School Education has sent recommendation as per the resolution passed in the said meeting, which are under consideration before the Government. Copy of the recommendation sent by the Director, School Education, dated 24.05.2010, in pursuance of the resolution passed in the meeting dated 6/5/2010 before the State Government is being annexed as Annexure CA-1 in this affidavit. (x) That it is submitted that till the decision taken by the Government in respect to appointments of regular Principal/Head Master in the Non-Government Institutions within the State in pursuance of the recommendation sent by the Uttarakhand School Education Board, the selection process for appointments in Non-Government Institutions has been kept in abeyance vide Govt. Orders dated 19.04.2010, 20.4.2010 and 27.4.2010, which is in the large public interest.” I have heard learned counsel for the parties and perused the record, placed on the file. The only short controversy in the writ petition is as to whether the selection process for the post of Principal in the petitioner Institution has been stayed by respondent No. 1 pursuant to the direction of the Hon’ble Minister of School Education and Government Orders dated 27.07.2009 and 03.01.2010 have been cancelled dehors the Act and Regulation. As far as the petitioner Institution is concerned, there is no dispute to this fact that the Principal of the Institution has retired and an unqualified senior most Lecturer is holding charge of the Principal. It is also not disputed 5 that before framing of Regulations under Section 24 of the Act, the selection process was rightly kept in abeyance. After framing of Regulations, under the Act, on 27.07.2009, the Secretary, School Education (respondent No. 1) has also lifted the ban, which was imposed vide Government Order dated 27.06.2007. On 03.01.2010, respondent No. 1 also wrote letter to Director, Education on 03.01.2010 and gave an intimation that Government has lifted the restrictions on selection process for filling up the post of Principal where the officiating Principals are not fulfilling the eligibility qualification as required under the Act. The ban imposed by the Government Order dated 11.12.2009, was set aside for those institutions where the unqualified Lecturers were holding the post of Principals. Thereafter, the selection process was initiated by the Institution to fill up the post of Principal, which is a direct recruitment post after obtaining approval from the appropriate authority and an advertisement was published for the post of Principal and applications were invited for said post. On publication of the advertisement, 21 persons had applied, as mentioned above. The process of selection was stopped by respondent No. 1 after the direction of the Hon’ble Minister of School Education and Director, Education also gave direction not to accord any approval to the selection process for the post of Principal. Learned counsel appearing on behalf of the respondents, Mr. Subhash Upadhayay, has further contended that there is a proposal to amend the regulation, framed under Section 24 of the Uttarakhand School Education Act, 2006. Letter dated 24.05.2010 to this effect has been filed as annexure C.A. 1 to the counter affidavit, filed on behalf of respondent No. 1. This fact is not disputed that no such amendment in the Regulations is made by the State till today. Arguments of learned counsel for the respondents cannot be accepted for the simple reason that no such amendment has been made in the Regulations. Regulations have been framed under Uttarakhand School Education Act, 2006 in accordance with law and process of selection started pursuant to the order passed by respondent No. 1 and the selection process could not be suspended on the basis of instructions given on administrative grounds. Having heard learned counsel for the parties, this Court is of the view that the impugned order, passed by respondent No. 1, whereby directions given are administrative in nature, the selection process was stayed without assigning any reason. Further it is made clarified that on 03.01.2010 on the ground that an unqualified Lecturer is officiating as Principal, the ban was 6 rightly lifted by the Secretary, School Education (respondent No. 1) in respect of the similarly situated institutions where the unqualified Lecturers are Officiating Principals. Therefore, the subsequent order passed by Hon’ble Minister of Education, is liable to be set aside on the sole ground that till today no amendment has been made in Regulations by the State Government. The proposed amendment only indicate that the foremost condition for direct recruitment is that the person applying for the post should have registered his/her name with the Employment Exchange. This could only be given effect to if the Government makes amendment in the Regulation in the future. It is well settled principle of law that once the selection process is started the same would be as per the prevalent regulations as on the date of advertisement. In the facts and circumstances of the case, orders dated 19.04.2010 (Annexure-21 and 22 to the writ petition), and order dated 27.04.2010 (Annexure-26 to the writ petition), are liable to be set aside. Accordingly, orders dated 19.04.2010 and order dated 27.04.2010 are set aside. The writ petition is allowed. It is directed that selection process be initiated further and approval be given in accordance with the Rules. (B.S.Verma, J.) 14-09-2010 S