C/M, Kumari Udyan Balika Inter ... vs State Of U.P. And 5 Ors.
2015 Latest Caselaw 233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- WRIT - A No. - 7747 of 2015
 

 
Petitioner :- C/M, Kumari Udyan Balika Inter Collge
 
Respondent :- State Of U.P. And 5 Ors.
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel.

This writ petition is directed against the order of Regional Level Committee dated 2.1.2015 whereby the approval of proposal for selection of the Assistant Teacher in the institution in question has been returned with a direction to rectify the mistakes.

Kumari Udyan Balika Inter College, Kanpur Nagar is a recognised aided Intermediate College and is governed by the provisions of the U.P. Intermediate Education Act, 1921, the regulations framed thereunder and U.P. Act No. 24 of 1971. The institution is a minority institution established and administered by Christian Minority Community, consequently the provisions of U.P. Secondary Education Services Selection Board, 1982 are not applicable to the institution in question.

To fill up one post of Assistant Teacher in LT Grade in English subject, an advertisement was published in the daily Newspaper on 20.10.2014. It was specified therein that the applications should be received latest by 5.11.2014 and to be sent through registered post to the manager. Pursuant thereto 51 application forms were received by registered post out of which 40 were sorted out as complete and the candidates were called for interview. 35 candidates were interviewed on 12.11.2014. After the selection, papers were forwarded to the District Inspector of Schools, Kanpur Nagar for according approval. It appears that one Rashmi Tripathi filed complaint before the Joint Director of Education, Kanpur Nagar making allegation of wrong exclusion of her candidature from the selection proceeding. Taking cognizance of her complaint, it was forwarded to the District Inspector to examine and to get a report from the Manager of the institution. The report was submitted by the Manager on 15.1.2014 stating therein that Smt. Rashmi Tripathi appears to have sent the application through Speed post and as the office of the manager was instructed to receive only the applications sent through registered post, all the applications sent through Speed post were refused and returned back.

The matter was placed before the Regional Level Committee and by order dated 2.1.2015, the Regional Level Committee disapproved the selection on the ground that the applicants who had send their application forms through Speed post have wrongly been excluded. A direction was given to include the complainant and all other similarly situated candidates in the process of selection by holding a fresh interview. After fresh selection, papers are directed to be placed before the Regional Level Committee.

Challenging the order passed by the Regional Level Committee, submissions of Sri Ashok Khare, learned Senior Counsel for the petitioner are :-

(1) In view of sub section (4) of Section 16-FF, the power of Regional Level Committee or the District Inspector of Schools for that the matter is restricted to withhold the approval of selection made only when a candidate/person selected does not possess the prescribed minimum qualification or is otherwise eligible. In the absence of any such finding the Regional Level Committee could not have rejected the proposal of selection.

(2) Even otherwise, the advertisement issued by the Committee of Management clearly specified that the application should be submitted by registered post only. The management had acted fairly and without any discrimination had sorted out all the applications received through registered post. The mode of service having been categorically provided in the advertisement, the candidates were under obligation to adopt the same mode. Any other mode was not acceptable and hence the applications were rightly returned back.

(3) The selection process is complete with the making of the proposal of selection of a candidate who appeared in the interview, the Regional Level Committee had erred in directing to hold fresh interview by including the applications received through Speed post.

(4) No other candidates whose application forms have been rejected came forward to challenge the decision of the Managing Committee of the institution and hence there is no occasion for not inviting them in the fresh interview.

(5) It appears that only one candidate had filed complaint before the Joint Director of Education, challenging her exclusion. It was, therefore, not open for the Regional Level Committee to issue direction to the management to consider all such applications which were sent through Speed post and invite all those candidates for interview, who had applied for the post.

(6) Even otherwise, the Regional Level Committee before issuing such direction did not consider that the applications have already been returned back, no data is available with the Managing Committee to call such candidates who had sent their applications through Speed post. It is impossible, therefore, to rectify the mistakes. The direction of the Regional Level Committee are impractical and cannot be complied with.

Learned Senior Counsel for the petitioner has relied upon the judgment of this Court in Mukesh Singh Chauhan and Others Vs. State of U.P. and Others reported in 2006 (4) AWC 3471 in support of his submissions that the financial approval can be withheld only when the candidate selected does not possess the prescribed qualification and is not eligible. In absence of any such finding refusal of financial approval is unsustainable. Further reliance has been placed upon a Division Bench judgment of this Court in Satyendra Kumar Mishra Vs. State of U.P. & Others reported in 2006 (7) AWC 7570 to urge that any executive instructions cannot override or amend or supersede the statutory provisions or add something therein. The Intermediate Education Act itself recognised "registered post" as the only mode of service. The advertisement issued for selection also specified the registered post as the only mode to send application forms.

In light of this, it was not open for the candidates to apply through any other mode including the Speed post. The Speed post is not a recognised mode of service in the Intermediate Education Act and hence the petitioner Managing Committee committed no irregularity in rejecting the applications received through Speed post.

Learned Standing Counsel on the other hand support the reasoning given by the Regional Level Committee for rejecting the proposal of selection sent by the Managing Committee of the institution.

Having heard learned counsel for the parties and perused the record. The facts as culled out from the records are:-

(1) The Managing Committee has issued an advertisement on 20.10.2014 inviting applications through registered post and the last date to receive the application forms was 5.11.2014.

(2) 51 application forms received through registered post were sorted out and the candidates were invited.

(3) Interview was held on 12.11.2014.

(4) Smt. Rashmi Tripathi, an applicant filed a complaint before the Joint Director of Education that she had not been invited for interview which was fixed on 12.11.2014. Prayer was also made to stay the proceedings of selection. The said application was forwarded on 8.12.2014 to the District Inspector of Schools, Kanpur Nagar by the Joint Director of Education on which comments of the Committee of Management was invited on 9.12.2014.

(5) In the meantime, proposal of selection of Assistant Teacher in English was received in the office of District Inspector of Schools, Kanpur Nagar which was forwarded to the Regional Level Committee on 3.12.2014 by the District Inspector of Schools.

(6) Manager of the institution gave his report on 15.12.2014. The District Inspector of Schools submitted his report on 30.12.2014 to the Regional Level Committee.

(7) on 2.1.2015, the order of rejection of the proposal was passed by the Regional Level Committee and the matter was remitted back to the management to consider afresh and correct the mistakes pointed out therein.

In the above factual background now action of the Regional Level Committee and the Committee of Management are to be examined by this Court.

There in no dispute about the fact that the Managing Committee had advertised the vacancy of Assistant Teacher in accordance with Regulation 17 as contained in Chapter II of the Regulations framed under the U.P. Intermediate Education Act. It is also not disputed that all the candidates who had submitted their application forms through Speed post were not considered and their application forms were returned as refused. It is also not disputed that the Managing Committee of the minority institution i.e. institution in question is the master of the proceedings of selection.

Under the scheme of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder provision for qualification, eligibility and a method of selection for the teachers of the minority institution have been given.

Regulation 17 as contained in Chapter II of the Regulations provides for the procedure for filling up the vacancy of the teachers by direct recruitment in any recognised minority institution.

Regulation 17 reads as under:-

Regulation 17: The procedure for filling up the vacancy of the head of the Institution and teachers by direct recruitment in any recognized institution referred to in Section 16-FF, shall be as follows:

(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager of the institution in at least one-Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e., whether temporary/permanent) and number of vacancies, descriptions of post (i.e. Principle or Headmaster, Lecture or L.T., C.T, or J.T.C.B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale of pay and other allowances, experience required, minimum qualification and age prescribed, if any for the post and prescribing a date which should ordinarily be less than two 'weeks form the date of advertisement by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.

Notes:- (1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised.

(2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.

(b) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies, of all the necessary certificates and testimonials. The management may charge cost of tl a application form not exceeding the amount referred 10 in Clause (2) of the Regulation 10.

(c) An application by a person employed in an institution and applying for a post elsewhere or in tie same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.

(d) All applications received form the candidates shell be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns, The Candidates to be called for interview shall be sever for each post (the number of applicants, permitting). The Manager shall intimate by registered post all the members of the Selection Committee as well as such candidates as are called fir interview, the date, time and place of selection at lea-it ten days before it is held. The Selection Committee will hold the selection accordingly. If on account of any unavoidable reason the expert selected by the Committee of Management under Clause (a) of the proviso to Sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed, the meeting of the Selection Committee shall, a postponed.

(e) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12, and 16 shall mutatis mutandis apply to selections made under this regulation.

(f) A panel of experts consisting of fifteen or more persons selected form category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned. The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in sealed cover to the management through its manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.

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Section 16-FF provides for constitution of Selection Committee and the power of approval for the selection made. Sub Section (4) of Section 16-FF enumerates the power of the Regional Deputy Director of Education or the District Inspector of Schools, as the case may be, not to withhold the approval for the selection made under the said section, where the persons selected is qualified and is otherwise eligible. In case of any disapproval, a representation lies before the higher authority i.e. the Director or the Regional Deputy Director of Education, as the case may be.

In various decisions of this Court as also the judgment relied upon by the counsel for the petitioner, it has been held that the provisions as contemplated under Regulation 17 of Chapter II of the Regulations framed under the Intermediate Education Act are merely guidelines and any irregularities committed whereof would not make the candidates selected ineligible if he is otherwise qualified and eligible. The power of the District Inspector of Schools or the Regional Deputy Director of Education, for that matter is restricted only to examine as to whether the selected candidates is qualified and eligible. The managing committee is free to select the candidate and assessment of comparative merit is not open to review, nor it is required to give reasons for selection from amongst qualified and eligible candidates.

In view of the above settled legal proposition, it is to be examined as to whether the Regional Level Committee could have sent the proposal back on the ground that the candidates who had sent their application forms through Speed post were wrongly excluded.

To answer this question, sub section (2), (3) and (4) of Section 16-FF would be relevant and reproduced as under:-

Sub-section (2)- The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.

Sub-section (3)- No person selected under this section shall be appointed, unless-

(a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and

(b) in the case of a teacher such proposal has been approved by the Inspector.

Sub-Section (4)- The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible.

Sub-Section (2) of Section 16-FF provides that the procedure to be followed by the Selection Committee for appointment of teachers of a minority institution may be prescribed.

Sub-section (3) provides that no person selected shall be appointed unless the proposal of appointment has been approved by the District Inspector of Schools.

So far as the sub-section (4) is concerned, it has been discussed above that it is not open before the District Inspector of Schools or the Regional Level Committee for that matter to enter, into the controversy and enquire into the intricacies or irregularities alleged to have been made in the selection process. Further it is also noteworthy that the procedure has been provided in Regulation 17 of Chapter II of the regulations framed under the Intermediate Education Act which is clearly in the nature of guidelines. What logically follows is that the authority before whom the proposal of appointment was submitted has to approve the proposal merely looking at it and cannot question the intricacies made in the selection process.

However, at this juncture, looking to the facts and circumstances of the case it is clearly reflected that no other infirmity was found in the selection process by the Regional Level Committee except that all the candidates who had submitted their application forms through Speed post were not considered by the Selection Committee. This position is not disputed by the petitioner. The petitioner has accepted that the application forms received through Speed post were refused and the candidates have not been invited for interview. The information in this regard was received by the Regional Level Committee soon after the proposal was received it.

The infirmity pointed out in the selection process in the instant case is not of the intricacies of the selection but goes to the very root of the selection itself. There cannot be any dispute about the fact that all the applicants qualified and eligible have to be considered by the Selection Committee before making proposal of appointment. As there cannot be two views to this position, this Court finds that the Regional Level Committee has not erred into entering the controversy and looking to the proposal of appointment on this aspect.

Now dealing with the arguments of the petitioner that the applications received through Speed post were rejected as the advertisement itself categorically provided for sending the application forms through Speed post.

To analyse this argument of the petitioner, the Court has an occasion to visit the official website of the Indian Postal Service namely www.indiapost.gov.in which provides information regarding various mail services offered by the Indian Postal Department under the Ministry of Communication & Information Technology. One of the mail service is "Registered service" the object of which has been narrated to provide secure transmission of the customers articles. A record is kept at all stages the article passes through. Also the registered articles are transmitted, under special precautions. The procedure provided under the heading "How to Register" states that an article intended for registration must be presented at the window of the post office. A receipt will be given to the person who presents an article for registration during the hours prescribed for posting the registered article.

So far as the "Speed post" is concerned, it has been provided under the heading "Premium Products". It is mentioned that the Speed post is the market leader in the domestic express industry. It is providing time-bound and express delivery of letters and parcels weighing upto 35 kg between specified stations in India. In the past 28 years, it continues to be the market leader in the express industry with monthly volumes of almost 4 crore articles. Speed Post delivers 'Value for money' to everyone everywhere. Speed Post is booked in almost all the departmental Post Offices across the country and delivered in every nook and corner of the country.

Thus registered post and Speed post are two modes of secure postal delivery of letters and parcels. It is known to all that the Speed post is faster mode of delivery than the registered post and is one of the premium services provided by the Postal Department. There is no doubt that the post through registration is the oldest mode of delivery but it cannot be treated as better mode or the only mode of delivery of letters/articles with the proof of delivery (emphasis added) which is not available in the 'Ordinary Post'.

The expression "postage" mean the duty chargeable for the transmission by post of postal articles and the "post office' means the department established for the purpose of carrying out the provisions of the Indian Post Office Act, 1898.

So far as the Intermediate Education Act is concerned, Speed post has not been provided as one of the mode of delivery of letters but that does not mean that it does not recognise much acknowledged mode of delivery of letters like Speed post. There cannot be any dispute to the fact that the Speed post is one of the most acknowledged mode of postal service.

In light of the above, this Court finds that the petitioner Committee of Management had committed patent illegality in refusing the applications received through Speed post. There is no rationale for the Managing Committee to stick to the applications received through registered post.

Now, the question remains as to how the mistake can be rectified.

Learned Senior Counsel for the petitioner has pointed out practical difficultly that the management is not in a position to rectify the mistake as the details of the candidates whose application forms have been rejected are not before it.

This submission of learned Senior Counsel for the petitioner seems reasonable as it is an admitted position that the application forms received through Speed post were rejected outrightly as reported by the clerk of the institute and were returned back.

This apart no other candidate except Smt. Rashmi Tripathi had raised grievances against the selection.

In view of this admitted position, the candidates who are not before this Court and have never raised grievances before the educational authorities, are not entitled for consideration.

However, so far as Smt. Rashmi Tripathi is concerned, as she had approached the Joint Director of Education, Kanpur Nagar even before the interview was held on 12.11.2014 and raised voice against the procedure adopted by the Managing Committee, she is entitled to be considered by the Selection Committee.

It is, therefore, directed that the petitioner Committee of Management shall constitute a Selection Committee and invite all the candidates who have been allowed to appear before the Selection Committee in the interview held on 12.11.2014, and Smt. Rashmi Tripathi and hold a fresh Selection.

A fresh interview be held and after preparation of the select panel most appropriate candidate as per the resolution of the Committee be offered appointment. The proposal of appointment be sent before the educational authorities for approval. The educational authorities after consideration of the proposal for grant of approval strictly in accordance with Section 16-FF and the law laid down by this Court and discussed herein above, shall accord approval.

The entire exercise be completed as expeditiously as possible.

The order passed by the Regional Level Committee dated 2.1.2015 is modified to the extent of directions given hereinabove.

With these observations, the writ petition is disposed of.

 
Order Date :- 30.4.2015
 
B.K.						     (Sunita Agarwal, J.)