Manmohan Mishra vs State Of U.P. And 6 Others
2015 Latest Caselaw 232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 256 of 2015
 

 
Appellant :- Manmohan Mishra
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Appellant :- Kundan Rai,P.K. Jain,Vishal Kashyap
 
Counsel for Respondent :- C.S.C.,A.K. Yadav
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Manoj Kumar Gupta,J.

The appellant having unsuccessfully pursued a writ proceeding under Article 226 of the Constitution, is in appeal against a judgment and order of the learned Single Judge dated 15 April 2015.

The appellant was appointed as a Lecturer in Physics on 21 January 1980 in the D.P. Girls Inter College, Allahabad, an institution which is recognised under the Uttar Pradesh Intermediate Education Act, 19211. An advertisement was published by the Uttar Pradesh Secondary Education Services Selection Board2 for appointment of the Principal of the institution in 2011. On 12 March 2015, the Board invited two senior most teachers of the college for an interview for the post which was scheduled to be held on 16 April 2015. The second senior most teacher in the seniority list is stated to have attained the age of superannuation on 24 December 2014 and was continuing in service until the end of the academic session. The appellant applied for his name being forwarded for interview under Rule 12(6) of the U.P. Secondary Education Services Selection Board Rules, 19983. The Committee of Management submitted the records pertaining to the appellant and the senior most teacher. The Board rejected the candidature of the appellant on the ground that he was not eligible for appointment on the post of Principal being a male candidate (as a result of the bar created by Rule 9 of the Rules of 1998) and the institution was directed to send the name of the next senior most woman teacher. Aggrieved, the appellant filed a writ petition seeking, inter alia, to challenge the order dated 9 April 2015, rejecting his candidature and seeking a mandamus to the Board to allow the appellant to appear in the interview scheduled to be held on 16 April 2015. The learned Single Judge dismissed the writ petition holding that Rule 9 of the Rules of 1998 prohibits the appointment of a male candidate in a girls institution as Headmaster or Principal. The learned Single Judge held that the restriction was not in conflict with either the Act of 1921 or the U.P. Secondary Education Services Selection Board Act, 19824 nor was it unreasonable. The petition was accordingly dismissed.

The Uttar Pradesh Intermediate Education Act, 1921 was enacted to establish a Board of High School and Intermediate Education. Section 16-E envisages that the head of the institution and teachers shall be appointed by the Committee of Management in the manner which is thereinafter provided. The Act of 1982 established the Board for the selection of teachers in institutions recognised under the Act of 1921. The Statement of Objects and Reasons accompanying the introduction of the Bill in the state legislature furnish the following rationale for the enactment of the Act:

"The appointment of teachers in secondary institutions recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and regulations made thereunder. It was felt that the selection of teachers under the provisions of the said Act and the regulations was some times not free and fair. Besides, the field of selection was also very much restricted. This adversely affected the availability of suitable teachers and the standard of education. It was therefore, considered necessary to constitute Secondary Education Service Commission at the State level, to select Principals, Lecturers, Headmasters and L.T. Grade teachers, and Secondary Education Selection Boards at the regional level, to select and make available suitable candidates for comparatively lower posts in C.T./J.T.C./B.T.C. Grade for such institutions."

The object of enacting Act 5 of 1982 was to obviate the allegations that the selection of teachers under the provisions of the Act of 1921 had not been free and fair. The object was to ensure that selection of teachers including Principals and Headmasters would be made on an objective and fair basis. Section 9 (a) of the Act of 1982 empowers the Board to prepare guidelines on matters relating to the method of recruitment and promotion of teachers. Under Section 9(i) of the Act of 1982, the Board is to perform such other duties and exercise such other powers as may be prescribed or as may be incidental or conducive to the discharge of its functions under the Act or the Rules or Regulations made under it. Section 10 of the Act of 1982 lays down the procedure for selection by direct recruitment under which the Management has to determine the number of vacancies existing or likely to fall vacant during the year of recruitment and to notify the vacancies to the Board in such manner as may prescribed. Section 10(2) of the Act of 1982 provides that the procedure for selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed. The expression 'Teacher' is defined in Section 2(k) of the Act of 1982 to mean a person employed for imparting instruction in an institution and to include a Principal or a Headmaster. Under Section 11, upon the notification of the vacancy, the Board has to prepare a panel of persons found most suitable for appointment which is to be intimated to the Management of the institution. The Management is required to issue an appointment to the selected candidate. Section 16 of the Act of 1982 provides that notwithstanding anything to the contrary contained in the Act of 1921 or the Regulations framed under it, every appointment of a teacher shall be made by the Management only on the recommendation of the Board. Section 32 of the Act of 1982 deals with the applicability of the Act of 1921 and provides as follows:

"32. Applicability of U.P. Act No.II of 1921. - The provisions of the Intermediate Education Act, 1921 and the Regulation made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made thereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher."

A rule making power is conferred upon the State Government by Section 35 of the Act of 1982 under which rules are to be framed for carrying out the purposes of the Act. In exercise of the rule making power, the State Government initially framed the Uttar Pradesh Secondary Education Services Commission Rules, 19835. These were followed by the Uttar Pradesh Secondary Education Services Commission Rules, 19956 and ultimately by the Rules of 1998. Under Rule 10 of the Rules of 1998, recruitment to the post of Principal of an Intermediate College is to be by direct recruitment. Under Rule 11(2)(b) of the Rules of 1998, it has been provided that with regard to the post of Principal or Headmaster, the Management has to forward names of two senior most teachers together with their service records to the Board.

Rule 5 of the Rules of 1998 deals with academic qualifications for appointment to the post of teacher and is in the following terms:-

"5. Academic qualifications. - 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, 1921."

Consequently, the qualifications which have been specified in Regulation 1 of Chapter II of the Regulations made under the Act of 1921 have been incorporated by Rule 5 of the Rules of 1998. Rule 9 of the Rules of 1998, upon which the controversy in the present case turns, provides as follows:

"9. Bar to appoint a male candidate in a girls' institution - No male candidate shall be eligible for appointment to the post a in a girls' institution:

Provided that nothing contained in this rule shall apply to -

(a) a candidate already working as a confirmed teacher in a girls' institution for appointment by promotion to a higher post of teacher, other than the post of head of institution in the same institution; or

(b) a blind candidate for appointment as a teacher for the subject of Music :

Provided further that when a suitable lady candidate is not available for appointment to the post of a teacher other than the post of head of institution, or for any other sufficient reason the Board is satisfied that it is expedient in the interest of the students so to do, it may select a male candidate for such post :

Provided also that before selecting a male candidate in accordance with the preceding proviso, the Board may obtain and consider the views of the Management of the institution concerned and the Joint Director."

In its substantive part, Rule 9 provides that a male candidate shall not be eligible for appointment to the post of a teacher in a girls institution. However, clause (a) of the first proviso to Rule 9 protects the services of candidates who are already working as confirmed teachers in a girls institution by securing their right to appointment by promotion to a higher post of teacher other than a post of the head of the institution. The second proviso, however, stipulates that when a suitable lady candidate is not available for appointment as a teacher other than the post of a head of the institution or for any sufficient reason, deemed expedient in the interest of students, the Board may select a male candidate for the post. The prohibition contained in Rule 9 of the Rules of 1998 is similar to a corresponding provision in Rule 3 (2) of the Rules of 1983 and almost identical to Rule 9 of the Rules of 1995.

Now, it is in this background that it would be necessary to appreciate the submissions which have been urged on behalf of the appellant by learned counsel. The submissions are as follows:

(i) The duty and function of the Board under the Act of 1982 is to provide the procedure for selection of candidates as is evident from Section 10(2) of the Act of 1982. The Board does not have the statutory power to frame qualifications for appointments of teachers and, in fact, Rule 5 of the Rules of 1998 incorporates the qualifications prescribed in Regulation 1 of Chapter II of the Regulations framed under the Intermediate Education Act, 1921;

(ii) The right of a qualified teacher under the Act of 1921 cannot be taken away by the rule making power conferred on the State by Section 35 of the Act of 1982. Rights which have been conferred under the Act of 1921 cannot be taken away by subordinate legislation framed under the Act of 1982;

(iii) Rule 9 of the Rules of 1998 is ultra vires the provisions of Section 35 of the Act of 1982. The Act of 1982 does not empower the Board to frame qualifications for appointment as a teacher;

(iv) The framing of qualifications constitutes an essential legislative function which cannot be delegated to subordinate legislation; and

(v) The restriction which is imposed by Rule 9 of the Rules of 1998 is unreasonable.

The Secondary Education Services Selection Board was constituted by Act 5 of the Act of 1982; the object of the state legislature being to establish a Board which would bring objectivity and fairness in the appointment of teachers in institutions which are governed by the Intermediate Education Act, 1921. As we have noticed earlier, the Board has wide ranging powers and duties under Section 9 of the Act of 1982, including the preparation of guidelines on matters relating to the method of recruitment and promotion of teachers and the performance of duties and exercise of powers, as may be incidental or conducive, to the discharge of its functions under the Act. Section 10(2) of the Act of 1982 envisages that the procedure for selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed. Under Section 32 of the Act of 1982, the provisions of the Act of 1921 as well as the Regulations which were framed under it, were to continue to remain in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of teachers insofar as they are not inconsistent with the provisions of the Act. This provision, to our mind, is a clear recognition by the state legislature of two things. Firstly, the statutory provisions contained in the Act of 1921, as well as its Regulations, would continue to hold the field, inter alia, in matters of selection, appointment and promotion of teachers insofar as they were not inconsistent with the provisions contained in the Act of 1982 as well as in the Rules and Regulations made under the Act. Secondly, the language of Section 32 indicates that under the Act of 1982 as well as the Rules or Regulations which could be framed under it, provisions could be made in the matter of selection, appointment and promotion of teachers among other things. These could even be at variance with those under the Act of 1921 and the rules and regulations under it. For, unless such a power to make provisions in the Rules and Regulations framed under the Act of 1982 in regard to selection, appointment and promotion of teachers among other things, was comprehended, there would be no possibility of any inconsistency. The fact that the legislature did envisage an inconsistency conceivably as arising and gave an overriding effect, to the extent of the inconsistency, to the Act of 1982 and to the Rules and Regulations made under it, indicate both the sweep and ambit of the regulatory power under the Act of 1982 as well as the overriding force which would operate in respect of the statutory provisions contained in the Act as well as in the Rules and the Regulations. In fact, it must also be emphasised that in Section 32 of the Act of 1982, the legislature contemplated an inconsistency not merely with the provisions of the subsequent Act but also with its Rules and Regulations. In either event, it is the Act of 1982 as well as the Rules and Regulations framed thereunder which would prevail to the extent of inconsistency. Rule 5 of the Rules of 1998 incorporates the qualifications which are specified in Regulation 1 of Chapter II of the Regulations made under the Act of 1921.

Rule 9 of the Rules of 1998 essentially ensures that for appointment to the post of a teacher in a girls institution a candidate should not be a male. However, clause (a) to the first proviso to Rule 9 stipulates that if a candidate was already working as a confirmed teacher in a girls institution, such a candidate could secure appointment by promotion to a higher post of teacher other than the head of the institution. Moreover, under clause (b) to the first proviso, the Board is empowered to select even a male candidate for appointment to the post of a teacher other than the head of an institution when a suitable woman candidate is not available or where the Board is satisfied for any other sufficient reason that it is expedient in the interest of the students to do so. These provisions in Rule 9 are based on an expert assessment by the delegate of the legislature that such a provision was necessary in the State of Uttar Pradesh to protect the interest and welfare of students in an institution exclusively meant for girls. The rule-making authority is entitled to form an opinion that in order to encourage girls' education in the State, a conducive atmosphere should be created. As part of a measure for creating a conducive environment for imparting education and to encourage the formation of public confidence in a girls' institution, it is open to the delegate to form an assessment that in such an institution, male candidates should not be appointed as teachers, save and except in certain exceptional situations. Those exceptional situations have also been categorized in Rule 9. However, in the case of a head of an institution, a male candidate has been regarded as not being eligible. There is a distinction between the duties and functions which are discharged by the head of the institution and by a mere teacher. The head of an institution has an important role to play in inculcating discipline among the teaching and non-teaching staff as well as among the students. The head of the institution has duties and functions which a teacher does not possess. The distinction is based on a reasonable classification.

The Supreme Court in the celebrated judgment in the case of Air India Versus Nergesh Meerza7 ruled that 'what Articles 15 (1) and 16 (2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations'.

For arriving at such a conclusion their Lordships of the Supreme Court placed reliance on a previous judgment in the case of Yusuf Abdul Aziz Versus State of Bombay8 wherein, it was held that sex is a permissible classification. Therein, the Court observed as under: -

"Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code."

In a later decision in Miss C.B. Muthamma Versus Union of India9, Hon'ble Mr. Justice Krishna Iyer, speaking for the Supreme Court made the following observations: -

"We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the the differentiation is demonstrable, the rule of equality must govern." (emphasis supplied)

The legislature or its delegate can legitimately be of the view that in order to encourage greater access to education to girl students in intermediate education, the post of head of the institution should be filled in only on the basis that the candidate, who is chosen, should not be a male candidate. This cannot be regarded as being unreasonable or as violative of Article 14 of the Constitution. This does not indicate a legislative opinion formed either by the state legislature or by its delegate as to the unsuitability of male candidates in general, but an assessment by the rule-making authority that the interest of women's education can be sub-served best by the creation of a conducive environment in which a greater degree of confidence is generated by the appointment of women as teachers or as heads of institutions. It is trite law that it is open to the legislature or to its delegate to take into account the prevailing social circumstances in the area within its regulatory power and social realities which have a bearing on such policy decisions. Aspects such as the safety of girl students, the possibility of abuse and the need to protect girl students of a particular age group are considerations which cannot be regarded as being alien or extraneous to the exercise of regulatory powers. In this view of the matter, the impugned Rule cannot be faulted as being unreasonable or as violative of Article 14. As time goes by, a regulation which is conceived in the best interest of young women students at a particular point of time, may need to be modulated based upon experience gained, the development of education and the awareness of women's rights in society. When the time is right to do so is a matter for legislative judgment on which the Court cannot express any opinion. Significantly, the provision in the present case does not exclude women. A provision which restricts, curtails or circumscribes the rights of women - in the workplace, in educational institutions or elsewhere - would have to meet a heavy burden. It would be a discrimination against women on grounds of gender which is constitutionally impermissible. But the provision before us is not a provision that excludes women.

There is no merit in the submission that the right which has been conferred by the Act of 1921 has been taken away by subordinate legislation which has been framed under the Act of 1982. As a first principle of law, there can be no dispute about the proposition that subordinate legislation is subservient to an enactment of the state legislature. But, in the present case, the scheme of the two state enactments has to be understood in its correct perspective. The object of setting up the Secondary Education Services Selection Board under the Act of 1982, was to substitute the method of selection which prevailed under the Act of 1921 in the field of intermediate education and to confer the power on the Board to regulate appointments in intermediate institutions governed by the Act of 1921. The powers which have been vested in the Board, more particularly, by Section 9, Section 10 and Section 35 are wide enough to extend to the framing of rules to define the qualifications of teachers. This, as we have noted earlier, is evident from Section 32 which confers a paramount effect upon the statutory provisions of the Act of 1982 and the Rules and Regulations framed thereunder over the statutory provisions contained in the Act of 1921 and its Rules and Regulations in the event of inconsistency. In fact, while framing Rule 5, the delegate of the legislature incorporated the qualifications contained in Regulation 1 of Chapter II of the Regulations made under the Act of 1921. Insofar as the power is concerned, it would have been open to the subordinate legislation to frame its own qualifications. However, while framing Rule 5, the delegate of the legislature has adopted the convenient legislative device of incorporating the qualifications which were already prescribed under the Act of 1921 while making Rule 5. These are legislative modalities which are well accepted. The Act of 1982, in fact, does contemplate that the statutory provisions contained in the Act of 1921 as well as its rules and regulations must give way in the event of inconsistency with the Act of 1982 or the Rules and Regulations framed under it.

Insofar as the issue before this Court is concerned, a considerable degree of guidance can be obtained from the judgment of a Supreme Court in Balbir Kaur and another Vs. U.P. Secondary Education Services Selection Board, Allahabad and others10. In that case, an advertisement was issued under the Act of 1982 for filling up vacancies of principals in institutions region-wise. The names of two senior most teachers were to be forwarded by the Management in accordance with Rule 11 (2) (b) of the Rules of 1998. The challenge in that case was that candidates who were eligible for selection under Regulation 1 of Chapter II of the Regulations framed under the Act of 1921 had been excluded. The contention was that Regulation 1 of Chapter II provided only for a stipulated experience of Class IX to XII and not teaching experience as a lecturer, as was prescribed in the advertisements. In that context, the Supreme Court held as follows:

"Having come to the said conclusion, the issue which still survives for consideration is whether for appointment to the post of Principal, the qualifying experience as stipulated in the said `Note' would apply or the one prescribed in the Appendix-A to Regulation I of Chapter II of the Regulations made under the Intermediate Act. In our view, answer to the question can be found in Section 32 of the Principal Act, which provides that the provision of the Intermediate Act and Regulations made thereunder will continue to be in force in case they are not inconsistent with the Principal Act and the Rules made thereunder. As noted hereinbefore `Note' to sub rule (5) of Rule 12 of 1998 Rules prescribes the requirement of experience for the post, which is different from what is prescribed in the said Appendix A and, therefore, there being a conflict between the two provisions, in the teeth of Section 32, the said `Note' shall have an overriding effect over Appendix A insofar as the question of experience is concerned."

The judgment of the Supreme Court, therefore, is a clear answer to submission which has been urged on behalf of the appellant. The Supreme Court observed that the Note to sub-rule 5 of Rule 12 of the Rules of 1998 prescribed the requirement of experience for the post which was different from what was prescribed in the Regulations framed under the Act of 1921. Consequently, the Note would have an overriding effect insofar as the question of experience was concerned.

In view of this legal position, we would have to hold, though for the reasons which we have indicated, that there is no merit in the challenge to the view which has been taken by the learned Single Judge. The rule-making authority in framing Rule 9 has not taken over an essential legislative function. The rule-making authority has not transgressed the limitations on its statutory power under Section 35 of the Act of 1982. Rule 9 is perfectly in conformity with the provisions of the Act of 1982 and cannot be regarded as being unreasonable.

For these reasons, we hold that the learned Single Judge was not in error in dismissing the writ petition and upholding the rejection of the candidature of the appellant based on the provisions of Rule 9 of the Act of 1982.

The special appeal accordingly stand dismissed. There shall be no order as to costs.

Order Date :- 30.4.2015

VMA

(Dr. D.Y. Chandrachud, C.J.)

(M.K. Gupta, J.)