Dr. (Smt.) Nitu Masih vs State Of U.P. And 4 Ors.
2017 Latest Caselaw 1482 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR 
 

 
Case :- WRIT - A No. - 1576 of 2017
 
Petitioner :- Dr. (Smt.) Nitu Masih
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- Kunwar Bhadur Dixit,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,Ram Gopal Tripathi
 

 
Hon'ble Manoj Kumar Gupta,J.

The petitioner has called in question the order dated 23.11.2016 passed by the third respondent1 and the order dated 6.1.2017 passed by the second respondent2 refusing to accord approval to the selection of the petitioner on the post of the Head of Rakha Balika Inter College, Fatehgarh, Farrukhabad. The approval has been withheld on the ground that the petitioner does not possess requisite teaching experience.

The petitioner is M.A. (History), M.A. (English), B. Ed, Ph. D. Rakha Balika Inter College3 is a recognised minority institution under the U.P. Intermediate Education Act, 19214. It is aided upto High School level, whereas it is having Vitt Vihin sanction for running classes at Intermediate level. Being a minority institution, the provisions of U.P. Secondary Education Services Selection Board Act, 1982 are not applicable to the institution.

In response to an advertisement dated 21.8.2016 issued by the Institution inviting applications for appointment on the post of Head Master, the petitioner also applied. She was selected by the Selection Committee constituted in accordance with the provisions of the Act and the Regulation framed thereunder. The fifth respondent forwarded the papers relating to selection for obtaining approval as contemplated under Section 16-FF of the Act. The third respondent, by impugned order dated 23.11.2016, refused to accord approval on the ground that the petitioner does not possess the requisite teaching experience. The petitioner had placed reliance on her teaching experience as Lecturer (History) at Syed Babuddin Islamia Inter College, Mahloi, Mainpuri, which is a recognised institution under the Act. The experience certificate has been issued by the management of the institution on 23.8.2016, duly counter signed by the District Inspector of Schools, certifying the teaching experience in the said institution as under :-

Period

Duration

(a)

3.7.2011 to 18.12.2014

3 years 5 months 15 days

(b)

19.12.2014 to 31.8.2015

(study leave) NIL

(c)

From 1.9.2015 till date of advertisement i.e. 21.8.2016

11 months, 19 days

The advertisement was issued on 21.8.2016 and thus the petitioner has sought benefit of her teaching experience in the said institution from 3.7.2011 to 20.8.2016 excluding the period of study leave during which she had done her B. Ed. It comes to 4 years 5 months and 4 days.

The third respondent has observed in the impugned order that B. Ed. session during which the petitioner obtained B.Ed. degree was from 1.7.2014 to 31.5.2015 and thus the said period was also liable to be excluded while calculating teaching experience. It has accordingly been held that after exclusion of the said period, the teaching experience of the petitioner would come to 3 years 7 months, which being less than 4 years, she did not had the requisite teaching experience on the date of advertisement.

Aggrieved by the order of the third respondent, the petitioner filed an appeal before the second respondent wherein it was contended that the B.Ed. session was running late. It started on 19.12.2014 and came to an end on 31.8.2015. During this period, the petitioner had also taken study leave. It was contended that the period during which she had actually availed study leave could only be excluded from the teaching experience and not on hypothetical basis as had been done by the third respondent. The second respondent seems to have accepted the said contention of the petitioner while holding that the petitioner had to her credit more than 4 years, 5 months of teaching experience. However, the second respondent proceeded to hold that the teaching experience possessed by the petitioner is not of 10 years. It has further been held that though the petitioner had experience of more than 5 years of teaching High School classes, but the teaching experience so gained was as an untrained teacher and cannot be recognised. In other words, the second respondent held that she should have had four years experience as a trained teacher. Since the petitioner acquired B. Ed. training in the year 2015 and thus the experience gained prior to that, could not be counted.

On 16.2.2017, learned Standing Counsel placed on record the relevant material as also a chart disclosing the period during which the petitioner had worked as a teacher. He further made a statement that the State-respondent does not wish to file any further affidavits. In view of the said statement, the petition was heard finally.

Sri R. K. Ojha, learned Senior Counsel alongwith Sri K. B. Dixit appearing on behalf of the petitioner contended that the law does not make any distinction in the teaching experience gained by a teacher prior to training or after training. In support of the said contention, he referred to Regulation 3 of Ch.II read with Appendix-A, in particular, to Note 2 of the Item at Sl. no.1. It is contended that the petitioner being a trained Post Graduate, was required to have at least 4 years teaching experience in classes 9-12 in any institution recognised by the Board. It is contended that the petitioner was duly qualified to teach classes 9-12, being a Post Graduate. It was not necessary for her to be a trained teacher, it being only a desirable qualification and not an essential qualification. Thus, teaching experience gained while teaching classes 9-12 even as an untrained teacher fully qualifies for being computed as teaching experience for selection on the post of Head of the Institution.

On the other hand, Sri Upendra Singh, learned Standing Counsel appearing on behalf of the State-respondents supported the order passed by the third respondent by contending that the period from July 2014 to December 2014 had been rightly excluded in view of the fact that the petitioner had passed B.Ed. during academic session 2014-2015. Alternatively, he submitted that the teaching experience gained by the petitioner as untrained teacher could not be counted, as held by the second respondent.

The issues which arise for consideration are :- (i) Whether the period from July 2014 to December 2014 is liable to be excluded while calculating the period of teaching experience and (ii) Whether the experience acquired prior to the petitioner obtaining training qualification (B.Ed.) could be counted towards teaching experience.

Coming to the first issue, it is noteworthy that the specific case of the petitioner was that the B.Ed. session (2014-2015) during which she had done B.Ed. course was running late. It started on 19.12.2014 and came to end on 31.8.2015. She also accordingly took study leave from 19.12.2014 to 31.8.2015. The third respondent has observed that since the admission in B.Ed. was during the academic session 2014-2015, therefore, the period starting from July 2014 to December 2014 is liable to be deducted. In the opinion of the Court, such a reasoning is wholly fallacious. The provisions of the Act, as would be noted later on, speaks of teaching experience, meaning thereby, the actual experience gained by a person while teaching students. It could neither be reduced nor extended on a hypothetical basis. In case the logic which has been adopted by the third respondent is accepted, then ex-hypothesis, session would come to an end in May 2015 and thus the period from 1.6.2015 to 31.8.2015 would be liable to be added towards experience although during this period, the petitioner was on study leave. In the appeal filed by the petitioner against the order of the third respondent, the Director of Education has rightly proceeded to accept the contention of the petitioner that her teaching experience was more than 4 years 5 months. The finding recorded in this regard by the Director of Education in appeal is thus, perfectly justified and does not call for any interference.

Coming to the second issue, which is of a fundamental nature, it may be noted that the eligibility qualification is provided under Appendix-A to the Regulations framed under the Act. At sl. no.1, the qualification for the post of Head of the Institution is prescribed thus :-

Sl. No.

Name of the post

Education Training Experience

Age

Desirable qualification

Head of the Institution

(1) Should be a trained M.A. or M.Sc. or M. Com or M.Sc.(Ag) or any equivalent post-graduate or other degree which is conferred by any body as referred to in above mentioned para and should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree college affiliated with such institution as referred to in above-mentioned first para, or at least four years teaching experience in classes 9-12 in any institution recognised by Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by Board, or should possess at least four years' experience as trained graduate Headmaster in any Junior High School recognised by Deptt. :

Provided that he/she should not be less than thirty years of age.

(2)Teaching experience of ten years in intermediate classes of any recognised institution with first or second class post graduate degree, or third class post graduate degree with 15 years' teaching experience.

Or

(3) Post graduate diploma holder in Science: Provided that he has passed this diploma course in first or second class and has served meritoriously for 15 or 20 yerars respectively in any recognised institution after passing such diploma course.

Note - (1) At least second class post graduate degree and on special teaching experience of 10 years in intermediate classes of recognised institutions, training eligibility of Asstt. Teachers may be relaxed (as per the provisions in the Act).

(2) Teaching prior to training or after training or both, are included in teaching experience.

(3) Higher classes mean classes 9-12 and teaching experience of these classes is admissible for the post of principal in Intermediate College.

Minimum 30 years

Trained

A bare perusal of the provisions reveals that it provides for various alternate qualifications for a person being appointed as the Head of the Institution. Clause 1, which is relevant for the controversy at hand, can be sub-divided as under :-

(a) Should be a trained M.A. or M.Sc. or M.Com. or M.Sc. (Ag) or any equivalent post graduate or other degree which is conferred by any University established or issued under or by any Central Act, Provincial or State Act or any institution which is considered as University under Section 3 of University Grants Commission Act, 1956, or of any such institution specially empowered by any enactment of Parliament.

AND

Should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree college affiliated with such institution as referred to in first para.

OR

At least 4 years teaching experience in classes 9-12 in any institution recognised by the Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by the Board.

OR

Should possess at least 4 years teaching experience as trained graduate Head Master in any Junior High School recognised by the Department.

A bare reading of the provision reveals that it is in two parts. The first part prescribes the educational qualification whereas the second part prescribes the requirement of experience. Thus, a candidate seeking appointment as head of the institution should be a (i) trained (ii) post-graduate from any university or institution referred to in para 1 of Appendix-A. Para 1 of the Appendix stipulates that the degree or diploma should be of any University established or issued under or by any Central Act, Provincial or State Act or any institution which is considered as University under Section 3 of University Grants Commission Act, 1956, or of any such institution specially empowered by any enactment of Parliament. The petitioner is a post-graduate having passed M.A. (History) and M.A. (English). She is also trained, having done Ph.D. There is no challenge to her educational qualification.

The other part prescribes the teaching experience. The teaching experience prescribed deals with different situations. Thus, for a person having teaching experience from any teaching institution recognised by the department or any degree college affiliated with any university or institution or any degree college affiliated with such institution as referred to first para of the Appendix, the duration is not prescribed. Whereas if the person is placing reliance on teaching experience of having taught classes 9-12 in any institution recognised by the Board or in any institution affiliated with the Boards' of other states or alike institution, whose examinations are recognised by the Board, the duration prescribed is at least four years. In case a person relies on his experience as Head Master of a junior high school recognised by the department, he has to fulfill twin requirements. He should have at least (i) four years of experience and (ii) as a trained teacher. Thus, according to the requirement of law, the petitioner who places reliance on her experience in classes 9-12 in Syed Babuddin Islamic Inter College, which is an institution recognised by the Board should have the same for a duration of at least four years. As discussed above, the said requirement was duly met by the petitioner. The provision no where prescribes that the teaching experience should have been gained as a trained teacher. To the contrary, Note (2) to the entry at sl. no.(1) of the Appendix specifically provides that 'teaching prior to training or after training or both are included in teaching experience'.

A close reading of the statutory provision further fortifies the view taken above. Wherever, it was necessary that the experience gained should be as a trained teacher, the same has been specifically stated. Thus where the experience as Head Master in any Junior High School recognised by the department is pressed in support of a claim for appointment on the post of Head of the institution, such experience should have been as a trained teacher and not otherwise. A clear departure in the language employed in the same statutory provision, in two different situations, unequivocally supports the interpretation made above. For accepting the stand taken by the department, the Court would be compelled to read something which is not warranted in view of the unambiguous language of the provision. Thus, it was not essential that the petitioner should have been a trained teacher for her experience in classes 9-12 being counted, while seeking appointment as Head of the Institution.

Learned Standing Counsel has placed reliance on a Division Bench judgment of this Court in case of Vivek Mudgil vs. State of U.P .and others5. In that case the issue was whether the appellant was validly appointed on the post of Principal in an institution governed by the Act as well as the provision of U.P. Secondary Education Services Selection Board Act, 1981. On the date the appellant applied for appointment in pursuance of the advertisement issued by the Board, he was not having a training qualification and was thus required to have alternate qualification i.e. 10 years teaching experience for being eligible for appointment as the Head of the institution. The contention of the appellant in that case was that 10 years experience was not an essential qualification and was capable of being relaxed by the Board in an appropriate case in exercise of its power under Section 16-E(3) of the Act. The Court found as a matter of fact that the appellant was not having any order of exemption in his favour from the Board under Section 16-E(3) of the Act. It was held that where a candidate is not a trained teacher, prescription of teaching experience of 10 years being in lieu of teaching qualification, it cannot be relaxed. The Court accordingly rejected the contention of the appellant that he should be granted relaxation in respect of teaching experience by holding thus:-

"In the present case, it must be noted that the requirement of teaching experience was an essential qualification. Clause (2) incorporated a requirement which would apply to a candidate who did not have the required training qualification. Clause (1) provided a requirement of holding a training qualification and what Clause (2) did, was to allow candidates without a training qualification but with a required teaching experience, to meet the condition of eligibility. In a case such as the present, it would not be proper for the Court to hold that though a candidate does not hold the training qualification, he would nonetheless be regarded as eligible despite a lack of teaching experience. The appointment of the appellant was cancelled within a short duration of five months from the date of joining. The appellant continued only on the strength of an interim order of this Court which cannot confer any higher right or equity. After the order of the learned Single Judge dismissing the writ petition, the senior-most candidate, the Court is informed, has already taken charge."

In the opinion of the Court, the aforesaid judgement does not in any manner support the contention of the State-respondents that the teaching experience in a situation like the instant one should be as a trained teacher. No such issue was under consideration in the said judgement.

In view of the foregoing discussion and for the reasons stated above, this Court is of the considered view that the reasoning given by the second respondent in the impugned order in not accepting the teaching experience of the petitioner to be valid is based on a complete misunderstanding of the legal provisions and thus cannot be sustained. In the result, the writ petition is allowed and the impugned orders are quashed. The third respondent is directed to pass fresh orders in regard to to grant of approval to the appointment of the petitioner as Head of the Institution in the light of the observations made above, within a period of three weeks from the date of production of certified copy of this order.

No order as to costs.

Order Date :- 31 May, 2017

skv

(M. K. Gupta, J)