Case: VIVEK MUDGIL Vs. STATE OF U.P

4. The Board has issued an advertisement on 03.03.2002 inviting applications for appointment to the post of Principal. The last date for submission of applications was 30.03.2002. The qualifications prescribed were – (i) the possession of a Post Graduate degree from an institution or a university established in accordance with law; and (ii) possession of a training qualification, namely, B.Ed. L.T., B.T. and B.P.Ed. The advertisement contained a stipulation requiring teaching experience of ten years in intermediate classes of any recognised institution together with a post graduate degree in the first or second class or a teaching experience of fifteen years for a candidate possessing post graduate degree in the third class.      5. The appellant herein was originally appointed as Lecturer in Physics and his services were regularised from 12.01.1990. He was on study leave for the period between 15.04.1992 to 08.03.1996. It is not in dispute that on the last date of submission of the applications, pursuant to C.A.@etc. advertisement issued by the Board, the experience of the appellant was 9 years and 3 months as against the requirement of 10 years. Initially the Board prepared a panel of selected candidates in the month of August 2002, which contained the name of the appellant herein. In view of the litigation concerning selection of panels, the said panel was not operated for the purpose of issuing appointment orders. Only after orders are passed by this Court in the month of May 2008, the panel prepared in the year 2002 was operated and the appellant was appointed as the Principal of the college and he joined as such on 15.07.2008. On 18.07.2008, a complaint was lodged before the District Inspector of Schools, Jhansi alleging that appellant did not possess 10 years of teaching experience and same was mandatory for selection to the post of Principal as per U.P. Secondary Education Services Selection Board Rules 1998 read with Regulation 1 of Chapter II of the Regulations framed under the Intermediate Education Act 1921. In view of such complaint, on the ground that appellant herein has not fulfilled required qualification of 10 years? experience, his appointment was cancelled on C.A.@etc. 10.12.2008, which order was subject matter of challenge in the writ petition filed by the appellant herein before the High Court of Allahabad. The learned Single Judge has dismissed the writ petitions by order dated 19.03.2015 by holding that, the period during which the appellant was on study leave cannot be counted towards teaching experience and on the last date of submission of applications, the appellant did not fulfill the required eligibility criterion, i.e., possessing ten years of teaching experience. The learned Single Judge, by recording a finding that the appointment could not be protected under Article 226 of the Constitution of India, rejected the petitions.      6. Said order was challenged by way of Special Appeal being S.A.Nos.189 and 190 of 2015 mainly on the ground that possession of 10 years of experience cannot be regarded as an essential qualification in view of the power conferred on the Board under proviso to Sectionof the 1921 Act. The Division Bench of the High Court, rejecting the plea of the appellant herein, dismissed the Special Appeals by recording a finding that after enforcement of the U.P. C.A.@etc. Secondary Education Services Selection Board Act, 1982 the requirement of 10 years? teaching experience is a necessary qualification and is mandatory.      7. During the pendency of the proceedings, the Board has issued exemption proceedings in favour of the appellant granting exemption of 9 months of teaching experience. As pleaded in the counter affidavit it is stated that such an exemption order was passed in view of the order dated 08.07.2015 passed by this Court in Special Leave Petitions. When order of exemption is passed, such order was again challenged by way of writ petition before the High Court which is ordered to be transferred to this Court and on such transfer the same is numbered as Transferred Case (C)No.5 of 2018 which is also taken up for hearing along with these civil appeals. For the sake of convenience, the facts of the civil appeals are being referred to.

Reasoning:
11. It is clear from the aforesaid order that there was no direction at all to consider for grant of exemption. By all fairness, when the matter is seized before this Court C.A.@es should not have passed any order granting exemption in favour of the appellant. In any event, from the perusal of the order, it is clear that no retrospective effect is given to such exemption proceedings. Even by grant of such exemption it will not cure the disqualification of the appellant as on last date of submission of the applications and on the date of preparing the panel. In the absence of any such express provision granting retrospective effect, even the exemption granted will not come to the rescue of the appellant to support his case. It is also pleaded that after the enforcement of the provisions of the U.P. Secondary Education Services Selection Board Act 1982, the power of exemption is also not available but the same is not required to be considered at this stage as we are of the view that exemption granted also will not come to the rescue of the appellant to make his selection and appointment valid. Having regard to the notified required qualifications under the Regulations, we are in agreement with the view taken by the Division Bench of the High Court that such qualification of 10 years of teaching experience is necessary qualification for C.A.@etc. appointment to the post of Principal. Although it is pleaded by learned counsel appearing for the respondents that the power of exemption is not available after enactment of the provisions of 1982 Act but in view of the reasoning assigned by us as referred above, it is not necessary to record any finding on such issue at this stage.