HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2)(b) Description of the Case. Writ Petition No. 63 (S/S) 2006 Umesh Chand ………Petitioner Vs. State of Uttaranchal and five ors. ….Respondents Approved for reporting Not approved for reporting Date of Decision 12th July 2006 Initial of Judge. HIGH COURT OF UTTARANCHAL AT NAINITAL (1)- Writ Petition No. 63(S/S) 2006 Umesh Chand S/o Sri Diwani Chand, R/o village- Chunabhatta, P.O. Chandani, Banbasa, District Champawat. ---- Petitioner. Versus 1. State of Uttaranchal through its Secretary, Basic Education, Dehradun, 2. Joint Director, Education Kumaon Mandal, Nainital, District Nainital, 3. District Basic Education Officer (B.S.A.), Champawat, District Champawat, 4. The Principal, David Payntar Junior High School, Gudami, Banbasa, District Champawat, 5. Committee of Management through its Manager, David Payntar Junior High School, Gudami, Banbasa, District Champawat, 6. Sri Deepak Chandra Upadhyay, S/o Sri B.D. Upadhyay, R/o Canal Colony, Banbasa, District Champawat. ----Respondents. AND (2)- Writ Petition No. 153(S/S) 2006 Suraj Chand Thakuri S/o Sri Lali Chand Thakuri, Resident of Garikot, Post Chandani, Tehsil Tanakpur, District Champawat. ---- Petitioner. Versus 1. State of Uttaranchal through its Secretary, Basic Education, Dehradun, 2. Joint Director, Education Kumaon Mandal, Nainital, District Nainital, 3. District Basic Education Officer (B.S.A.), Champawat, District Champawat, 4. The Principal, David Painter Junior High School, Gudami, Banbasa, District Champawat, 5. Committee of Management through its Manager, David Painter Junior High School, Gudami, Banbasa, District Champawat, 6. Sri Deepak Chandra Upadhyay, S/o Sri B.D. Upadhyay, R/o Canal Colony, Banbasa, District Champawat. ----Respondents. Sri B.S. Khanka Adv. and Sri D.S. Mehta, learned counsel for the petitioners, Learned Standing Counsel for the State/respondent nos. 1, 2, 3 & 4, Sri J.C. Pandey, learned counsel for the Committee of Management/respondent no. 5 Sri D.S. Patni, learned counsel for the respondent no. 6, Hon’ble M.M. Ghildiyal, J. The petitioner Sri Umesh Chand in writ petition no. 63(ss)2006 has challenged the order dated 28.12.2005 by which the Selection Committee has selected respondent no. 6, namely Sri Deepak Chandra Upadhyay, as Assistant Teacher in David Payntar Junior High School, Gudami Banbasa district Champawat and has further prayed to direct the respondents to provide appointment to the petitioner on the post of Assistant Teacher in the aforesaid Institution. The petitioner Sri Suraj Chand Thakuri in writ petition no. 153(ss)2006 has also prayed for quashing of selection list dated 28.12.2005 and has further prayed for a direction to the respondents to start fresh selection process for appointment on the post of Assistant Teacher in the aforesaid Institution. 2. Since both the petitioners are aggrieved with the selection of Sri Deepak Chandra Upadhyay as Assistant Teacher in the Institution pursuant to the advertisement issued on 05.12.2005, consequently both the writ petitions were clubbed and are being decided finally by a common judgment. 3. Heard Sri B.S. Khanka Adv. and Sri D.S. Mehta, learned counsel for the petitioners, Learned Standing Counsel for the State/respondent nos. 1, 2, 3 & 4, Sri J.C. Pandey, learned counsel for the Committee of Management/respondent no. 5 and Sri D.S. Patni, learned counsel for respondent no. 6. 4. The facts, in brief, are that an advertisement was issued by the Management David Painter, Junior High School, Gudami Banbasa, district Champawat inviting applications for the post of Assistant Teacher (Science and English) in the pay-scale of 5500-9000. The last date of submission of application was fixed in the aforesaid advertisement as 28th December 2005. The qualification of the aspirants was prescribed as Intermediate alongwith trained diploma. It was also stated in the advertisement that he Graduate/B. Ed. and the experienced candidates shall be given preference. In pursuance of the aforesaid advertisement 13 candidates, alongwith the petitioners and Sri Deepak Chandra Upadhyay applied for the post. On 28.12.2005 the interview was held and thereafter the Selection Committee prepared the minutes of the selection proceedings. In the minutes, Sri Umesh Chand, petitioner in writ petition no. 63(ss)06 was placed at serial no. 1 as he got 110 quality point marks. Sri Deepak Chandra Upadhyay, Sri Harish Chandra Pandey and Km. Geeta Pandey were placed at serial no. 2, 3 and 4 as they got 104, 100 and 87 quality point marks respectively. 5. The Selection Committee, thereafter made a note to the effect that though Sri Umesh Chand got the highest quality point marks and in the advertisement it was mentioned that the person having B.Ed. certificate shall be given preference, Sri Umesh Chand is only B.T.C. trained, as such, he is not entitled to be appointed and the person who has been placed at serial no. 2, namely Sri Deepak Chandra Upadhyay, who is having degree of B.Ed. in his credit, is selected for the post. 6. On 30th December 2005 the Committee of Management provided appointment to Sri Deepak Chandra Upadhyay and the papers were sent to Additional District Education Officer, Basic, Champawat for grant of approval to the appointment of Sri Deepak Chandra Upadhyay as Assistant Teacher in the Institution. The Additional District Education Officer Basic, Champawat granted approval to the appointment of respondent no. 6, on probation of one year. 7. Aggrieved with the order passed by the Selection Committee as well as Committee of Management and order of Additional District Education Officer, Champawat granting approval to the appointment of respondent no. 6, the petitioner in writ petition no. 63(ss)2006 has preferred this writ petition. 8. Short counter affidavit, detailed counter affidavit and additional counter affidavit have been filed by the respondent no. 6 to which the petitioner has also field rejoinder affidavit. 9. The petitioner, in writ petition no.63(ss)2006, has challenged the impugned order on the ground that the petitioner is eligible to be appointed as Assistant Teacher in Junior High School as he is having the qualification prescribed under the Rules for the post of Assistant Teacher, on the contrary, the respondent no. 6 is not B.T.C. trained, which is minimum qualification prescribed for the post. The petitioner had been left out on the ground that according to the advertisement, preference shall be given to those persons having experience and is having B.Ed. degree. The petitioner has got 110 quality point marks whereas; the respondent no. 6 achieved only 104 quality point marks. Preference does not mean that a person who is getting higher marks should be left out and the person having less marks should be selected on the grab of preference. The benefit of preference can only be granted to the candidate when two persons are on equal footing. 10. Counsel for the petitioner has further submitted that the respondent no. 6 has been awarded quality point marks for the experience on the basis of certificates issued to him by his father who is Head Master of the Institution where the respondent no. 6 is said to have gained experience of teaching. Counsel for the petitioner has submitted that firstly, the respondent no. 6 cannot be appointed in an Institution where his father is the Head Master and secondly, the experience certificated belongs to the period when the respondent no. 6 was not qualified to be appointed as a teacher in the Institution from where he has obtained the experience certificate. Lastly, the experience for the year 2002-03 and 2003-04 cannot be counted in favour of respondent no.6 because, undisputedly he obtained degree of B.Ed. in the year 2004 and it was practically impossible for him to compete B.Ed. from Amrapali Institute, Haldwani district Nainital and at the same time to serve the Institution at Banbasa, district Champawat. It is emphatically contended by the learned counsel for the petitioner that the respondent no. 6 has submitted the concocted and fabricated experience certificates before the Selection Committee in order to make his selection absolute. 11. Counsel for the petitioner in writ petition no. 153(ss)2006 has challenge the selection of Sri Deepak Chandra Upadhyay on various grounds. Firstly, the advertisement issued by the respondents was vague and illegal. As pre the advertisement, one post of Assistant Teacher was advertised for teaching two subjects (Mathematics and English). Secondly, the whole Committee of Management resigned on the ground that the Selection Committee has committed irregularity and adopted favouritism in the selection. Thirdly, the petitioner was already working in the very Institution as Teacher under the scheme of Parent Teacher’s Association for the last two years, however he has not been awarded marks for the experience. 12. The Institution, for which the post has been advertised, is a Junior High School imparting education upto the Classes VIII, the Services of the Assistant Teacher of Junior High School of a recognized aided school are governed by the U.P. Recognized Basic Schools (Junior High School) (Recruitment and conditions of services of Teachers) Rules 1978. 13. Rule-4 of the aforesaid Rule prescribes minimum qualification for appointment to the post of Assistant Teacher in Junior High School. Rule-4 (1) is quoted as under:- “The minimum qualification for the post of Assistant Teacher of recognized school shall be Intermediate examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and Teacher’s Training Course recognized by the State Govt. or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training).” 14. From bear perusal of the aforesaid Rule, it is apparent that the petitioner in writ petition no. 63(ss)2006 was having minimum qualification as prescribed under the Rules as he is Intermediate and also B.T.C. Trained. He has obtained 110 quality point marks in the Selection Committee. Learned counsel for the petitioner has fairly conceded that there is a Calculation mistake on the part of the Selection Committee, because he should have been awarded 106 quality point marks instead of 110 marks and even if he would have been awarded 106 quality point marks he has obtained highest marks. Learned counsel for the respondent no. 6 has submitted that the respondent no. 6 is graduate having certificate of Special B.T.C. as also degree of B.Ed. The Selection Committee has awarded marks of B.Ed. to him and has ignored the certificate of Special B.T.C. He has passed Special B.T.C. practical and theory in 1st Class and in case, the certificate of Spl. B.T.C. is considered, he would get more quality point marks than the petitioner and he would have been awarded 108 marks. 15. It is submitted by learned counsel for the petitioner that from perusal of tabulation sheet, it transpires that the respondent no. 6 has not disclosed that fact that he is also having certificate of B.T.C. that’s why the Selection Committee has not awarded the quality point marks for B.T.C. to him. Consequently this Court on 06.07.2006 directed the Committee of Management to produce the record to clarify the position. From perusal of the record, it revels that the respondent no. 6 had made mention in the application that he has also passed B.T.C. 16. From perusal of the application which was submitted by the respondent no. 6 before the Institute it is quite clear that the respondent no. 6 did mention that he is trained B.T.C. and in the circumstances there occur mistake on the part of Selection Committee not to award quality point marks in favour of respondent no. 6 for his B.T.C. training. Four marks have been awarded to respondent no. 6 for 2 year’s experience. The respondent no. 6 has submitted certificates of experience for a period spanning across 4 years and 1 month i.e. from 19.11.2001 to 19.12.2005. It is not disputed that the respondent no. 6 has obtained degree of B.Ed. in the year 2004 and in case, he was not having training, he should not have been appointed as Assistant Teacher in any Institution, to teach the students upto High School level. 17. In the circumstances the experience gained prior to having requisite qualification cannot be taken into account. Learned counsel for the petitioner has placed reliance on the judgment of Hon’ble the Apex Court in the case of Indian Airlines Limited and ors. vs. S. Gopalakrishnan, reported in 2001(2) Supreme Court Cases, 362 wherein Hon’ble the Apex Court has held that the experience acquired prior to obtaining requisite qualification cannot be counted. 18. The second question arises as to whether the experience gathered by the respondent no. 6 can be considered or not, as the experience certificate has been issued by the father of respondent no. 6 in the capacity of Principal, Sharda Intermediate College, Banbasa, district Champawat. The Rules do not permit appointment of a person, who is relative either of the Office Bearer of the Committee of Management or of the Principal. Thus, the certificates issued by the Principal, who happens to be the father of respondent no. 6, are incredible and they create doubt. 19. The last question, which arises to be determined, is that whether it is possible for a person on one hand to serve in a Institution situated at Banbasa in the district Champawat and on the other hand to complete B.Ed. course at the same time from the Institution known as Amrapali Institution situated at Haldwani, district Nainital. It would worth mentioning hear that the Degree of B.Ed. can only be obtained by attending the classes regularly and as per the norms of (NCTE), no candidate shall be permitted to appear in the examination of B.Ed., if he has not completed, at least, 180 days in B.Ed. course. Learned counsel for respondent no. 6 has emphatically contended that during the period when the respondent no. 6 was studying in B.Ed. he was not serving in the Institution. The factual dispute cannot be decided in a writ petition in exercising the power under Article 226 of the Constitution of India. In case, the respondent no. 6 was also having the degree pertaining to the Teacher’s Training Certificate and had he disclosed this factual position in the application form, he would certainly entitled to get quality point marks for his B.T.C. course and if the quality point marks are awarded to respondent no. 6 for B.T.C. training he will certainly get quality point marks more than the petitioner in writ petition no. 63(ss)2006. 20. Whether the respondent no. 6 was entitled to be appointed as Assistant Teacher or not at Banbasa where his father was the principal is another question which is also to be determined. In the prevailing circumstances, obviously there is factual dispute in the writ petition. 21. Form perusal of record it appears that the experience certificate was issued to the respondent no. 6 for two periods. The first pertains for the academic session of 1998-1999 and 1999-2000 by the Principal Sharda Uchchatar Madhyamik Vidhyalala, Banbasa district Champawat and the other certificate was issued by the Principal Sharda Intermediate College, Banbasa district Champawat certifying that he has taught Mathematics and Science in the Institution in the academic session 2002-2003 and 2003-2004. It is not disputed that the respondent no. 6 has obtained B.Ed. degree in the year 2004 and Special B.T.C. in the year 2005. In absence of having any training, the respondent no. 6 was not eligible to be appointed as Assistant Teacher in the year 1998-1999 and 1999- 2000. Therefore, the experience certificate issued for these two academic sessions cannot be taken into account in view of the law laid down by Hon’ble the Apex Court in the case of Indian Airlines Limited and ors. vs. S. Gopalakrishnan, reported in 2001(2) Supreme Court Cases, 362, as the experience has been gained by the respondent no. 6 prior to having requisite qualification. Consequently, the respondent no. 6 was not qualified to be appointed. 22. In another certificate which was issued for the academic session 2002-2003 and 2003-2004 certifying that the respondent no. 6 has taught Mathematics and Science in Sharda Intermediate College, Banbasa district Champawat it is not clear from the experience certificate as to whether he was appointed Assistant Teacher to teach Mathematics and Science or was appointed as Lecturer to teach the aforesaid subjects. Incase the respondent no. 6 was appointed as Assistant Teacher, the minimum qualification for which, according to Rules, is graduation plus B.Ed. degree. Certainly, the respondents no. 6 was not having B.Ed. degree till 2004 and in case the respondent no. 4 was not appointed as a Lecturer to teach Intermediate Classes for which the qualification is post graduation, then in that circumstance it is not possible as to why the respondent is permitted to teach two subjects Mathematics and Science (including Physics and Chemistry) in Intermediate Classes. These are the disputed question of facts. 23. The experience certificate issued to the petitioner is also disputed by respondent no. 6. 24. So far the petitioner in writ petition no. 152(ss)2006 is concerned, since the petitioner has appeared before the Selection Committee in pursuance of the advertisement issued on 05.12.2005, thus he cannot raise the dispute now, after facing the Selection Committee and after being unsuccessful, in view of the Apex Court’s judgment reported in 1995 (3) Supreme Court Cases, page 486 and 2000(2) Supreme Court Cases, page 615 but at the same time the Court cannot ignore this fact that the advertisement has been issued for filling up only one post of Assistant Teacher for teaching two subjects, namely, mathematics as well as English. Learned Standing counsel could not clarify the position whether a post of teacher can be advertised for the purposes of teaching two different subjects. 25. In the circumstances, I think it just and proper to direct the District Education Officer, Champawat to decide the disputed question of facts, as mentioned in the body of the judgment, after affording opportunity to the contesting parties within a period of six weeks from the date of production of a certified copy of this order before the District Education Officer. However, it is open for the respondents to initiate selection process afresh, in case the District Education Officer comes to the conclusion that the advertisement in question was not issued properly as per the Rules and the selection of respondent no. 6 was illegal. 26. With these directions writ petition no. 63(ss)2006 is disposed of accordingly and writ petition no. 153(SS)2006 is dismissed. No order as to costs. 27. Let a certified copy of this judgment be placed in the connected writ petition. (M.M. Ghildiyal, J.) July 12, 2006: NCM: